ESLR (2014-2015 Issue)

__________________________________________________________________________________________

EXETER STUDENT LAW REVIEW __________________________________________________________________

VOLUME 1, ISSUE 1

MAY 2015

A COLLECTION OF ESSAYS AND OPINIONS FROM UNIVERSITY OF EXETER LAW STUDENTS

EXETER STUDENT LAW REVIEW MAY 2015

Please note that the views expressed by the contributors are not necessarily of those of the Editors, the Exeter Student Law Review, our sponsor, or the University of Exeter. Whilst every effort has been made to ensure that the information in the journal is correct and accurate, the Editors cannot accept any responsibility for any consequences resulting from errors or submissions in the journal.

Š Copyright 2015. Exeter Student Law Review. All Rights Reserved.

ISSN 2058-8445 (Print) ISSN 2058-8453 (Online)

Volume no. 1, Issue no. 1, 2015.

www.exeterstudentlawreview.org

EDITORIAL BOARD FOUNDERS

Thomas Dwyer James Perryman EDITORS-IN-CHIEF

Thomas Dwyer James Perryman

HONORARY BOARD Stephen Edge Partner at Slaughter and May Alumnus of the University of Exeter

CONTENTS Editorial…………………………………………………………..………….………………………….vi Thomas Dwyer and James Perryman Foreword………………………………..……………………………………………………………...ix Stephen Edge 1.

The Relationship between a Duty of Good Faith and Implied Terms in English Contract Law……………………………….…………………………………….………..1 Cai, Wenrui

2.

A Critical Legal Analysis of ‘Germany as Victim’ by Omer Bertov and Bernhard Schlink’s ‘The Reader’………………………………..……………………………..6 Cattle, Ryan

3.

The Impact of the Human Rights Act 1998 on the Principle of Parliamentary Sovereignty……………………………………………………………………………...…………...15 Chen, Timothy

4.

Should Islamic Courts be established in Britain?.....................................................21 Cope, Laura

5.

The Requirement of the Beneficiary Principle for a Trust to be Valid………………………………………………………………………………..……………………28 Cross, Emma

6.

The Difference between the Acquisition of Rights and the Quantification of Shares of Co-Ownership Interests in Land……………………………….……………...35 Morgan, Rachel

7.

The Need for Reform of the United Nations’ Human Rights Treaty System…………………………………………………………….…………………………………….41 Newman-Tancredi, Miriam

8.

The Regulation of Sexual Autonomy………………………………..…….………………..52 Turner Bloom, Chloe Submissions………………………………………………………………..………………………...65

EDITORIAL The establishment of the Exeter Student Law Review has been an arduous task, but an exciting journey. It is an honour to have created the journal, which we hope shall continue for many years to come.

As final year LL.B. with European Study undergraduate students, who have spent a year abroad in Maastricht, The Netherlands, we knew that the project was ambitious but were driven to see its completion.

In its creation, we aimed to found a platform for high quality academic and legal discussion, which allows students to showcase their talent. It is with great pride that we can say we have achieved this goal.

In addition to printing the inaugural edition of the journal, we have created a website to increase readership and make it widely accessible to University of Exeter students, alumni and to all who wish to read it.

Within this volume, all selected submissions were taken from first class summative essays marked during the study of law within the University; this allowed for stimulating essays on a diverse range of topics. Not only does the Exeter Student Law Review add to the world or academic research, it also builds upon the evergrowing and sustained reputation of the University of Exeter.

We would like to sincerely thank all those who have supported, even in the most minute of ways, the establishment of the journal. Further gratitude goes to those students who submitted articles for consideration, and congratulations to those of you who were selected. The quality of submissions was extremely high and the selection process proved difficult. This volume is truly a small representation of a much larger body of thriving legal commentary from University of Exeter students.

Finally, we would like to thank our sponsor and collaborator in this project, Stephen Edge, who generously funded the project on a personal basis as well as enhancing the outreach of the journal to the alumni network.

We hope that the Exeter Student Law Review will have longevity – encouraging discourse and debate on legal issues - and shall continue to grow along with the success of the University of Exeter, and its law school. The journal is a cause for celebration and, on a personal level, a wonderful end-of-year highlight for us.

As an annual journal, we hope the next editorial team will find it an enjoyable experience and shall continue to build upon the Exeter Student Law Review’s foundations in allowing the exploration of various legal issues, whilst also vi

increasing the journal’s outreach. This year has certainly set a high standard for future volumes and we eagerly anticipate the fruitful development of the journal in the future. It is true that the journey was long and demanding, but we are thrilled with the finished result.

Thomas Dwyer and James Perryman Founders and Editors-in-Chief

vii

viii

FOREWORD I congratulate Thomas Dwyer and James Perryman on this initiative.

I hope the Review will be a great success and that their efforts in getting the Review off the ground will be rewarded by similar efforts made by future generations in the Law School so that this will become a sustained and vibrant contribution from the School.

Our university has now achieved recognition in so many ways - external reputation (as evidenced not least in the league tables), internal reputation (its appeal to student applicants and the quality of the student experience once they arrive), the status of its academic staff and the quality of the research done at the university, plus - most importantly in recent difficult times - the employability of its graduates.

By all those standards, Exeter has made spectacular progress in recent years: it has achieved world-class status.

This review will add to that picture of progressive achievement by enabling current students to get credit for their output and by showcasing the quality of work currently being done at the undergraduate level at Exeter.

The range of topics covered here is impressive - as is the level of research and thought that has gone into each contribution.

I hope that all those whose contributions appear are able to take pride in the work they have done now it is appearing in this format and that the Review will inspire future generations of lawyers at Exeter to maintain the effort made here.

Stephen Edge Partner at Slaughter and May Alumnus of the University of Exeter

ix

The Relationship Between A Duty Of Good Faith And Implied Terms In English Contract Law

THE RELATIONSHIP BETWEEN A DUTY OF GOOD FAITH AND IMPLIED TERMS IN ENGLISH CONTRACT LAW Wenrui Cai, 28/01/14 This article considers the relationship between a duty of good faith and implied terms in English Contract Law. The first section will examine the current position of implied terms in English contract law and the second section will seek to affirm the English approach to the existence of a duty of good faith in contract law via implied terms.

This article argues that the covert role of good faith conferred by implied terms is crucial, and reflects on its ultimate goal of promoting justice.

English contract law does not enforce a general obligation to act in good faith. If the parties want to include one, the onus is on them to draft it explicitly. 1 Owing to that fact, the use of implied terms have undertaken a greater role in supplementing the written contract, thereby advancing the reasonable expectations of parties.2 With regards to Yam Seng, Legatt J was concerned not with adopting a general legal principle of good faith, but rather with the existence of implied terms of good faith in the performance of a contract in a specific context.3 This essay is divided into two sections. The first section will examine the role of implied terms in English contract law. The second section will seek to affirm the English approach to the existence of a duty of good faith in contract law via implied terms.

Implied terms, in general, are terms not expressly provided for in a written contract. The two categories of implied terms in focus here are terms implied by fact and terms implied by law.

For implied terms by fact, the presumed intention of the parties are given effect.

The ‘Business Efficacy’ test; where the term is necessary for the effective functioning of the contract as the parties intended, and the ‘Officious Bystander’ test; where a conventional bystander is convinced of the existence of a term as being so obvious, are traditional tests of strict necessity applied in order to determine the intentions of the parties.4 While the traditional approach is championed by Lord Bingham,5 Lord Hoffmann in Belize suggested another approach to the traditional tests, one termed by McCaughran as the ‘Clapham Omnibus’ test.6 It is a test driven by reason, concerned with what a reasonable man equipped with the relevant background would understand the implied provision to mean. Macdonald has argued that the traditional tests while providing certainty, is too strict, making them increasingly onerous.7 Therefore, the Clapham Omnibus test serves to supplement them by increasing the scope for reaching a result based on the facts of the case in hand in accordance with ‘business common sense’.8 This

1

2015

Exeter Student Law Review

Vol.1/Issue.1

was endorsed by Aikens LJ in Crema.9 However one ought to note that Belize was a Privy Council decision and is thus not strictly binding.

For implied terms by law, the Courts will impose the term on what is deemed as an ‘incident of a definable category of contractual relationships’.10 These terms are routinely implied into discrete types of contracts based on their nature, as opposed to the presumed intentions of the parties. Yam Seng illustrated that a term of mutual trust, loyalty and confidence may be implied for contracts dealing with a long term relationship as they involve substantial commitment, co-operation and a high degree of communication between the parties involved.11 This is explicated by Malik for employment contracts;12 and Liverpool City Council for tenancy agreements,13 and elucidates the heavy emphasis on context when implying terms by law. This shifts the onus to the defendant to prove that the term should not fit into the categories of contract the courts considers relevant. The substantial dependency on context paints a clear picture of the specific category for subsequent cases to follow and allows for future revisions to be implemented in a piecemeal manner based on policy concerns.14 Before the term can be implied in law, the implied term in question needs to be both reasonable and necessary in the context of the particular category of contracts.15 At this juncture, it is vital for the distinction to be made between the implication and interpretation of terms. In a nutshell, the former is concerned with terms not explicitly stated in the contract, while the latter deals with terms expressly stated in the contract. In Yam Seng, the contract was not professionally crafted and was thus lacking in detail. The absence of clear express terms led to ambiguity and accorded the courts a greater berth for implication.16 Peden acknowledged that the implication of terms thrusts certain obligations on the contracting parties and thus empowers the courts to an extent that they are able to mould agreements coherent with society’s standards.17 Yam Seng created doubts regarding the scope and limits the courts are able to sanction vis-à-vis the legal regulation of commercial activity, which led to accusations of Judicial Paternalism. Brownsword recognised that the ‘Freedom to Contract’ is a default rule inherent within the law of contract,18 but when courts are increasingly made to police limitations on the contracting party’s discretion deriving from terms implied into the relevant contract, such accusations are bound to materialise. It is inevitable despite the high standards for the implication of terms to be imposed.19 However without such safeguards, Courts will be able to imply terms at a whim. The role implied terms play is a vital one. Its absence leaves Courts with only the medium of interpretation to determine the reasonable expectations of the parties. This will inevitably lead to a manifestation of unfairness and absurdity due to the natural imprecision of words. As a matter of

2

The Relationship Between A Duty Of Good Faith And Implied Terms In English Contract Law

construction, it is impossible for the drafter to foresee and account for every possible ramification a contract might bring. Therefore it can be said that implied terms fulfil the purpose of promoting the reasonable expectations of the parties by filling the lacunae created by express terms.

Pre Yam Seng, Interfoto was an indication that a requirement of good faith and fair dealing may exist in certain contractual contexts despite not being explicitly recognised by contract law unlike in other legal cultures.20 Post Yam Seng, Mid Essex illustrates the court’s stance of declining to fully incorporate a general duty of good faith.21 This affirms the view that instead of attempting to incorporate a default duty of good faith into English contract law, Legatt J’s judgement was one of developing an ‘Interpretative Contract Theory’ instead.22 This section, while not advocating for, or disproving the integration of a duty of good faith into English contract law, contends that the English are not worse off for not doing so due to the duty’s existence via implied terms.

The doctrine of Good Faith is shrouded in vagueness. There are many academic commentaries attempting to qualify it but a singular distinct definition has yet to arise. English contract law prides itself on clarity, but how does English contract law achieve clarity if it is not expressly accounted for as seen in America and Europe?23 With regards to the lack of certainty and clarity, Stapleton suggests a construct of incidence rules in order to confine the principle as was done with the doctrine of negligence.24 The construct of incidence can be brought about via implied terms, managed on an ad hoc basis vis-à-vis an emphasis on context. This approach resonates with the tests used in implying terms by law and the use of context defines the scope of obligation, thereby providing certainty and upholds the parties’ intentions.25 Another approach in a bid to confine the doctrine of good faith is the ‘Situation-Sense’ approach touted by Rakoff.26 It is an approach dependent on a tight and structured model of the transactional situation at issue in its societal context, which is analogous to the tests of reasonableness for terms implied by fact. Since the approaches suggested by Stapleton and Rakoff are kindred with the tests used for the implication of terms, it can be argued that the doctrine of good faith, if couched by implied terms, can in fact be narrowed and thus achieve clarity and certainty. The doctrine of Uberrimae Fides for insurance contracts is further testament to the possibility that a duty of good faith can be confined.27 Although English contract law may be ‘swimming against the tide’ by keeping the duty of good faith in the background,28 it is hardly drowning. A duty of good faith in the shadows is not novel as evinced by areas of law such as misrepresentation and undue influence which appear to incorporate some underlying concept of good faith.29

3

2015

Exeter Student Law Review

Vol.1/Issue.1

In conclusion, implied terms is a sine qua non of English contract law, thus its importance cannot be denied. It is imperative that the courts balance the scales between flexibility and certainty with regards to the tests governing implied terms so that the appropriate implications can be made in order to promote justice.

While the doctrine of good faith has started to trickle into English contract law via EU legislation,30 the floodgates for a default duty of good faith into all commercial contracts have yet to be opened. Until then, implied terms will continue to accord the duty of good faith a substantial role, one expressed by way of rules rather than overarching vague statements. Being implied, its effects are subterranean but nonetheless present. Also, the emphasis on context reduces the scope for uncertainty while providing latitude for the judge trying the case. This allows the courts to respond creatively yet consistently, thus maintaining its relevance to the perennial evolving normative nature of contract law.

Mid Essex Hospital Services NHS Trust v Compass Group UK and Ireland Ltd (t/a Medirest) [2013] EWCA Civ 200 (Jackson LJ).

2 Johan Steyn, ‘The Intractable Problem of the Interpretation of Legal Texts’ (2003) 25 Syd LR 5, 11.

3 Yam Seng Pte Ltd v International Trade Corporation Ltd [2013] EWHC 111 (QB), [2013] 1 All ER (Comm) 1321, [119] - [154] (Legatt J).

4 For ‘Business Efficacy test’ see The Moorcock (1889) 14 PD 64; Luxor (Eastbourne) Ltd v Cooper [1941] AC 108, 137 (Lord Wright). For ‘Officious Bystander test’ see Shirlaw v Southern Foundries [1939] 2 KB 206.

5 Phillips Electronique Grand Public SA v British Sky Broadcasting Ltd [1995] EMLR 472 (Lord Bingham).

6 Attorney-General of Belize v Belize Telecom Ltd [2009] UKPC 10, [2009] 2 All ER (Comm) 1 [16] (Lord Hoffmann); John McCaughran, ‘Implied Terms: The Journey of the Man on the Clapham Omnibus’ (2011) 70 CLJ 607, 614.

7 Elizabeth Macdonald, ‘Casting Aside “Officious Bystanders” and “Business Efficacy”?’ (2009) 26 JCL 97.

8 Rainy Sky v Kookmin Bank [2011] UKSC 50, [2012] 1 All ER (Comm) 1.

9 Crema v Cenkos Securities plc [2010] EWCA Civ 1444, [2011] 1 WLR 2066.

10 Scally v Southern Health and Social Services Board [1992] 1 AC 294, [1991] 4 All ER 563.

11 Yam Seng (n 3), [142].

12 Malik v BCCI [1997] UKHL 23, [1998] AC 20.

13 Liverpool City Council v Irwin and another [1977] AC 239.

14 Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1987] EWCA Civ 6, [1989] QB 433 (Bingham J).

15 For ‘reasonable’ see Liverpool City Council (n 15) (Lord Cross); Johan Steyn, ‘Contract law: Fulfilling the Reasonable Expectations of Honest Men’ (1997) 113 LQR 433, 441.

For ‘necessary’ see The Star Texas [1993] 2 Lloyd's Rep 445, 452 (Steyn LJ).

16 Yam Seng (n 3) [161].

17 Elisabeth Peden, ‘Policy concerns behind implication of terms in law’ (2001) 117 LQR 459.

18 Roger Brownsword, ‘Regulating Transactions: Good Faith and Fair Dealing’ in Howells and Schulze (ed), Modernising and Harmonising Consumer Contract Law (Munich: Sellier 2009) 87, 97.

1

4

The Relationship Between A Duty Of Good Faith And Implied Terms In English Contract Law

Ultraframe v Tailored Roofing [2004] EWCA Civ 585 [15] - [23].

Interfoto (n 16) (Bingham J).

21 Mid Essex (n 1).

22 Stephen Bogle, ‘Disclosing Good Faith in English Contract Law’ (2014) 18 Edin LR 141.

23 For America see U.C.C. §1 – 203 (2001); Restatement (Second) of Contracts §205 (1981).

For Europe see 956/1982 Laki kaannokset, 1 luku, 36§ (Finland); Art. 6:248 BW (Netherlands); Art. 1258 C.C. (Spain).

24 Jane Stapleton, ‘Good Faith in Private Law’ (1999) 52 CLP 1, 30.

25 Henry Hoskin ‘Contractual Obligations to Negotiate in Good Faith: Faithfulness to the Agreed Common Purpose’ (2014) 130 LQR 131.

26 Todd D Rakoff, ‘The Implied Terms of Contracts: Of “Default Rules” and “Situation-Sense”.’ in Jack Beatson and Daniel Friedman (ed), Good Faith and Fault in Contract Law (OUP 1997).

27 John Lowry, ‘Redrawing the Parameters of Good Faith in Insurance Contracts’ (2007) 60 CLP 338.

28 Yam Seng (n 3), [124].

29 Reshma Korde, ‘Good Faith and Freedom of Contract’ [2000] UCL Juris Rev 142.

30 Unfair Terms in Consumer Contracts Regulations 1999.

19 20

5

2015

Exeter Student Law Review

Vol.1/Issue.1

A CRITICAL LEGAL ANALYSIS OF ‘GERMANY AS VICTIM’ BY OMER BERTOV AND BERNHARD SCHLINK’S ‘THE READER’ Ryan Cattle, 14/02/14 This essay involves a critical review of the article ‘Germany as Victim’ by Omer Bertov, which discusses the impact of the Nazi regime on second generation Germans, in relation to Bernhard Schlink’s The Reader. The stance that Bertov takes in relation to Hanna’s moral character is used as a point of departure to address the statement that ‘justice always walks hand in hand with the law’. A discussion concerning the contextual influence over moral agency, involving analysis of the well-known debate between Goldhagen and Browning and the work of Stanley Milgram, leads to a conclusion that justice never truly can walk hand in hand with the law.

As the title of Omer Bertov’s article, Germany as Victim, alludes to, the article concerns the effect of the Third Reich’s coercive regime on second generation Germans. In this paper, this article shall be considered in relation to Bernhard Schlink’s The Reader.1 It will then consider the proposition that justice always walks hand in hand with the law, addressing the theme of attributing individual responsibility for vast atrocities and the contentious issues that such a discussion evokes, using The Reader for illumination. The article Germany as Victim explores two texts written by authors who straddle the ‘fine line between personal experience and the second generation’s often traumatized consciousness’ and whose texts may be ‘indicative of a legacy whose destructive realities are as horrifying as its implementations for individual and collective identity are troubling and contentious.’2 The first section, which this report will address, focuses on Bernhard Schlink’s The Reader and sets out to explore the implications of the Holocaust for post-war Germany. The exploration involves the difficult moral predicament faced by a nation blighted by the crimes of its ancestors. After a brief synopsis of the book, section one of the text comments upon the powerful link between Michael and Hanna; part two discusses the idea of both Michael and Hanna as victims; part three approaches the themes of emotional numbness and sexual passion; part four looks at the moral innocence of Hanna; finally, part five addresses the shame of the second generation, concluding that ‘The Reader is about Germany as victim.’3 The second generation of Germans as victims of the fate of their generation is explored most directly in the second and fifth substantive sections. The second section looks at the revelation that ‘both Hanna and Michael are victims.’4 Hanna is the victim of her illiteracy and becomes the victim of postwar German justice

6

A Critical Legal Analysis Of ‘Germany As Victim’ By Omer Bertov And Bernhard Schlink’s ‘The Reader’

through her ‘refusal to concede her’ handicap. This is followed by the observation that Michael ‘too is a victim, both of the fate of his generation, and of his inability to emerge from the emotional cul-de-sac of his passion for Hanna.’5 Recognising both Hanna and Michael as victims, it is deduced in a significant comment, that ‘in this double sense…[Michael] is a victim’s victim, a condition that leads to emotional paralysis.’6 The theme of emotional numbness runs throughout the article and is identified as a key theme of the book.

The bulk of the argument is cemented in the final section relating to The Reader.

Several quotes from the book are interspersed in discussion of the troubling questions asked by the ‘second-generation Germans’. After a crucial quote (‘What should our generation have done, what should it do with the knowledge of the horrors of the extermination of the Jews?’), it is suggested that Michael sees the ‘1968 students revolt…[as an] expression of a sense of collective guilt.’ Through a series of well-chosen quotes it is explained that, for Schlink, those who ‘dissociated themselves from their parents and thus from an entire generation’ were ‘overcoming their suffering because of the shame’ by parading their ‘selfrighteousness.’7 Shortly following this is a powerful short section, which epitomises the thrust of the essay: ‘This is a novel in which the true victims of the period, those who died and those who survive, have no face: their suffering, though conceded, remains abstract and evokes no emotion on the reader. Here it is the second generation Germans who are the victims of their shame for the perpetrators, and suffer for their love to them.’8 For Bartov, ‘[p]olluted by the crimes of the perpetrators’, Germany is a ‘victim of its history of murder’; concluding that ‘The Reader is about Germany as victim.’9 The strength of development displayed in this section through apt quotations and clearly made points that contribute to the view of ‘Germany as victim’, unfortunately seems quite foreign in relation to the rest of the article.

For example, the first substantive section opens with the assertive proclamation that ‘[t]he core of The Reader is an inversion of conventional roles, moral assumptions, and categories.’10 This is followed by an explanation of the strong link between Michael and Hanna rooted in ‘his immense physical attraction to her, and her dependence on him as a reader.’11 Bertov then delves into the links between ‘atrocity and eroticism’ using examples of several films from the 1970’s which support the proposition that Hanna’s ‘sexual appeal is…related to her dark, criminal, brutal past.’12 This disjointed opening section is indicative of several 7

2015

Exeter Student Law Review

Vol.1/Issue.1

shortcomings that are apparent throughout the article. Firstly, statements rich in potential, such as the above opening line, become fleeting and baseless when left unsupported. The lack of development means that any promise of critical bite is ephemeral and the observations seem misplaced; something that is notable at several points in the article.

Misplacement of such potential forms part of the second weakness: a general lack of structure throughout. Though a desire to convey observations to the reader in the hope of a more lucid argument seems genuine, the lack of structure denies clarity and acts as a barrier to developing points. To give just one example, part three of the article asserts that the ‘novel is a tale of emotional numbness and sexual passion’13 and without breaking stride moves on, through a tenuous link, to how Hanna’s illiteracy may explain her actions of having the inmates read to her.

Both points are valuable in the right context, but the lack of structure and seemingly random ordering notably stunts development of argument. Clearer form could provide for a more sophisticated discussion of Hanna’s illiteracy, as Weisberg has done, by recognising that ‘like Hanna, but on a figurative level, Europe is illiterate’14 which would contribute to the view of Hanna as a ‘victim of circumstances.’

Thirdly, the article is littered with references to the theme of sexual passion. In explaining the strong link between the characters of Hanna and Michael, the reference to ‘sexual attraction’ appears warranted as it contributes towards the proposition that Michael is a victim of his shame for Hanna. However, many of these comments degrade the quality of argument. This is typified in the final substantive section where the prominent question of second-generation guilt is addressed and followed by the line ‘for true sexual pleasure can be derived only from the perpetrators.’15 Unnecessary links to sexual pleasure, such as this, weaken the cogency of the article throughout; they seem entirely detached from and irrelevant to the article and detract from its effectiveness as an academic commentary. The theme is not irrelevant to discussion of The Reader as more advanced discussion have shown. Hall suggests that ‘Schlink’s familiarity with the mechanisms of popular literature’ plays a significant role in the shaping of the novel.16 However, the whimsical use of the theme by Bartov is detrimental to its strength.

The article takes the contentious view that Schlink demonstrates Hanna’s ‘moral…innocence’ and that her ‘helplessness…shows her as a victim of circumstances.’17 Whether Schlink uses the book as a conduit through which he is able to exculpate Nazi-era Germans, or not, is an issue that has attracted considerable academic debate. This article takes the stance, along with many 8

A Critical Legal Analysis Of ‘Germany As Victim’ By Omer Bertov And Bernhard Schlink’s ‘The Reader’

others, that by ‘bridg[ing] the gap between perpetrators and victims’18 Schlink ‘inject[s] a measure of doubt into our absolute condemnation of Nazi criminals’19; Bertov considers that when Hanna ‘naively asks the judge what he would have done in her place’20 she is morally absolved. By placing the judge and thus the reader in the position of Hanna, Schlink asks us to empathise with a mass murderer and the silence of the judge represents an exculpation of Hanna and ‘by extension, that of any other Holocaust participant.’21 Clearly this article does not stand alone in its opinion, however, to regard Schlink as the ‘pied piper of forgiveness’22 is arguably a misinterpretation. Schlink may instead be an author who, rather than ‘projecting limitless exculpation, associates judgment with a sympathy that need not condone.’23 As Jeffery Roth points out, the only credible description that we get of Hanna is from an eyewitness who says she was a ‘truly brutal woman.’24 It is clear that Michael's ‘frequent defence of Hanna's conduct thus sheds more light on his bias than on any actual victim status applicable to Hanna.’25 To reach the verdict that Schlink portrays a morally innocent Hanna is to become overly absorbed in the ‘rose-coloured conjecture’26 of Michael and detached from the reality that Hanna ‘never loses her quality as victimiser.’27 Furthermore, the article proposes, in a similar way to that of Catherine Ozick, that as a victim of circumstances Hanna’s ‘illiteracy renders her helpless and her war crimes were accidental.’28 If what is alluded to by the phrase ‘victim of circumstances’ is the concept of circumstantial luck, then the misapplication of the concept is detrimental to its conclusion. Hanna is not ‘helpless’ as a result of circumstantial luck, or bad luck more aptly. Illiteracy shapes Hanna’s identity by driving her employment choices and leads her to being a part of the ‘selection’ process, playing a role in marching Jews on a ‘death march, and failing to act to save prisoners trapped in a burning church. She faces circumstances that will undoubtedly change her moral record but that do not disable her agency; ‘illiteracy cannot serve as an explanation for cooperating in and committing criminal acts.’29 Compelled to leave her job at Siemens, Hanna too becomes a victim of Nazi Germany, consumed in the Holocaust machine. However, Schlink himself has said that the fact some perpetrators were victims ‘is not meant to insinuate any excuse’30 for their actions. Appreciating the circumstances that formed and enveloped the decisions she made does not reduce Hanna’s blameworthiness but ‘such reflexivity underscores the contextual nature of human morality.’31 With the contextual influence over moral character in mind, the effect of the ‘culture of compliance’ in facilitating the hideous crimes that Hanna and her cohorts committed should not be regarded as an excuse but rather a ‘reorientation 9

2015

Exeter Student Law Review

Vol.1/Issue.1

of our understanding of human nature.’32 A suitable platform from which to approach the statement that justice always walks hand in hand with the law is presented by this ‘reorientation’. Hitler’s rhetoric and policy, embedded in the desire to undo ‘the shame of the Versailles Treaty,’33 involved intense indoctrination. An awareness of the extent to which the moral agency of perpetrators was impaired by the ‘dystopic compulsion of their dominant regime and circumstances’34 may unveil an uneasy relationship between law and justice when it comes to attributing individual responsibility for war crimes.

Christopher Browning in the book Ordinary Men set out to explain the participation in the murderous operations and suggested that understanding Stanley Milgram’s work on ‘obedience to authority’ goes some way to comprehending the heinous crimes committed.35 Through a series of experiments, Milgram ‘tested the individuals ability to resist authority that was not backed by any external coercive threat.’36 Milgram displayed a ‘deeply engrained behavior tendency’ to comply with orders given by those positioned hierarchically above explaining that ‘evolutionary bias favors the survival of people who can adapt to hierarchical situations.’37 In a direct reference to the similarities between human behavior under his experiments and under the Nazi regime, he concluded that ‘Men are led to kill with little difficulty.’38 The ease with which moral boundaries become blurred and deference becomes natural, leads us to question whether those ‘playing a part in the machinery of cruelty and death with acquiescent rather than active participation,’39 lower down the hierarchy, should be held liable for their actions. ‘I was simply following orders’ may seem an outrageous excuse but up until the early 1940’s was a recognised defence. So then, do Hanna’s claims that she was merely doing her job40 merit serious legal consideration? Does the fact that she was following orders justify her actions?

The history of the law surrounding the doctrine of superior orders has been considered in depth by Gary D.Solis who observes the changing legal stance concerning the ‘issue of personal responsibility for wartime acts’ in recent history.41 The defence renders the ‘individual soldier immune from punishment because he carried out his duties pursuant to the orders of a superior’ and was successfully pleaded in Dover Castle,42 one of the Leipzig cases from WWI. However, optimistic of victory and in anticipation of the trial of the Nazi’s, the Allies altered the doctrine under Article 8 of the IMT (International Military Tribunal) Charter so that the defence could not be used.43 The motivation behind the doctrinal shift back to pre-1914 standard44 stems from the concern voiced by Supreme Court Justice Robert Jackson that ‘[s]ociety as modernly organized cannot tolerate so broad an arch of official irresponsibility’. This appears a legitimate

10

A Critical Legal Analysis Of ‘Germany As Victim’ By Omer Bertov And Bernhard Schlink’s ‘The Reader’

decision, but also one that can deliver injustice. The case of John Demjanjuk, the Ukrainian born man convicted of 28,060 counts of being an accessory to murder, typifies the potential lack of justice. Captured by German troops after joining the Red Army, Demjanjuk is unlikely to have harboured the same malice towards his victims and his obedience to orders will have been strengthened by selfpreservation. Under old law the defence may have been available to him. Instead, Demjanjuk, the ‘littlest of little fish,’45 is faced with the guilt of horrific murders on an unimaginable scale. It would be absurd to suggest that participants in the Holocaust should be void of liability, but the divergence in attribution of guilt seems unjust.

Interestingly, the IMT recognised that it was not correct to say that the defence had been entirely abolished and that the ‘True Test’ was the inquiry was ‘whether moral choice was in fact possible.’46 Justice seems far from in harmony with the law when the victors, who have been afforded the moral high ground by destiny,47 are able to shape the law into questioning moral choices that they could only face in their darkest nightmares. Applying the unique ability of literary texts to provide insight into human nature and morality to legal doctrines, allows us to better judge whether justice is obtained. For example, whether moral choice was available to individuals, like Schlink’s character Hanna absorbed in a compliance culture, seems unanswerable for onlookers. Maybe then, as Dreike suggests, The Reader has wider implications concerning the competences of the law and ‘what it can achieve and how we cannot expect too much of it’. From this view, the judges silence in response to Hanna’s awkward question ‘what would you have done?’48 evidences such limitations. This question can never be answered satisfactorily; arguably it is through this lack of understanding between the perpetrators and those who judge them, including us, that Schlink presents a ‘negative description of the law’s capabilities’, as Hall suggests.49 Whether the law can ever be truly just in situations where there is such a void in understanding and experience between those who judge and those who are judged seems questionable.

Daniel Goldhagen’s book Hitler’s Willing Executioners50 presents participants in the Holocaust in a much less flattering light, shrouded in anti-Semitic hostility.

Goldhagen set out to disprove the compliance model and show that perpetrators were not simply compliant but ‘willing executioners’. From this view, attributing individual responsibility is entirely just. Individuals had committed these dreadful acts and individuals should be held fully responsible for them. Reading Browning’s work, it must not be forgotten that there were participants who fully embraced the Third Reich’s ideology and were directly complicit in its activities; for them, attributing individual responsibility for mass genocide is just. However,

11

2015

Exeter Student Law Review

Vol.1/Issue.1

Goldhagen’s approach ‘flatly dismissed the obvious structural considerations, which profoundly limited the freedom of choice available to ordinary people.’51 This dismissal fails to consider those were not ideological fanatics, but were subject to the intense and intrusive indoctrination of a political party representing hope.

The very recent charge of an 88-year-old former member of the SS, named only as Werner C, accused of taking part ‘in the murder of 25 people… and with aiding and abetting the murder of several hundred people’52 in the French village of Oradursur-Glane, embodies the difficulties of attributing individual responsibility. The unnamed man was 19 at the time of the massacre of 642 people and claims not to have been involved in the murders as he ‘had the great luck of being deployed for something else.’53 There is an entirely understandable yearning for responsibility to be attributed for horrific acts such as this. This desire has been expressed by one of the few survivours, Robert Hebras; ‘it is important that we find someone even if it is 70 years afterwards’.54 There is a danger, however, that this urge obscures justice by assuming all participants to be bestial perpetrators. The accused may well have been a savage and directly complicit, in which case, attributing him personal responsibility is non-contentious. However, if, as he claims, he was simply complying with orders, then the task is much more difficult. The work of Browning and Milgram does not suggest that the compliance culture renders perpetrators innocent, but ignoring the profound effects of obedience to authority and the power of the Third Reich’s ideology risks classing everyone involved within the same brutish bracket. We may never know which ‘bracket’ he falls in. This translates to attributing personal responsibility to all participants on the same level and seems out of step with law walking hand in hand with justice. It is clearly not the case that justice always walks hand in hand with the law. It may even be, that in situations where individuals, such as Schlink’s Hanna, are plagued by ‘blinkered’ moral agency’,55 the unbridgeable gap in understanding between those judging and the accused, as displayed above, means justice can never truly walk hand in hand with the law.

Bernhard Schlink, The Reader (Random House, 1997). Originally published as Der Vorleser (Heinemann 1995).

2 Bartov (n 1) 30.

3 ibid, 34.

4 ibid, 30.

5 ibid.

6 ibid.

7 ibid, 33.

8 ibid.

1

12

A Critical Legal Analysis Of ‘Germany As Victim’ By Omer Bertov And Bernhard Schlink’s ‘The Reader’ ibid, 34. ibid, 30.

11 ibid.

12 ibid, 30.

13 ibid, 30.

14 Richard Weisberg, ‘A Sympathy That Does not Condone: Notes in Summation on Schlink’s The Reader’ (2004) 16 Law and Literature 229, 231.

15 Bartov (n 1) 34.

16 Katharina Hall, ‘The Author, The Novel, The Reader and the Perils of ‘Neue Lesbarkeit: A comparative Analysis of Bernhard Sclink’s Selbs Justiz and Der Vorleser’ (2006) 59 German Life and Letters 446, 466; Hall suggests the sexual element of the book reflects the German literature project ‘neue Lesbarket’ aimed at reviving German literature.

17 Bartov (n 1) 32.

18 John MacKinnon, ‘Law and Tenderness in Bernhard Schlink's The Reader’ (2004) 16 Law and Literature 1.

19 Jeffrey Roth, ‘Reading and Misreading The Reader’ (2004) 16 Law and Literature 163, 166.

20 Bartov (n 1) 31.

21 Roth (n 20) 170.

22 Weisberg (n 15) 229.

23 ibid.

24 Schlink, The Reader (n 2) 213.

25 Bill Nixen, ‘Bernhard Schlink’s ‘Der Vorleser’ and the Problem of Shame’ (2003) 98 Modern Language Review 381, 390.

26 Roth (n 20) 170.

27 Weisberg (n 15) 229.

28 Cynthia Ozick, Quarrel & Quandary (Knopf Inc 2000) 103.

29 Ernstein Schlant, The Language of Silence: West German Literature and the Holocaust (Routledge 1999) 213.

30 Bernhard Schlink, Guilt About The Past (University of Queensland Press 2009) 17.

31 Melanie Williams, ‘Conceptions of Moral Luck, Culpability, and The Reader’ (2011) 5 Law and Humanities 303, 307.

32 Christopher Browning, Ordinary Men: Reserve Police Batallion 101 and The Final Solution (Penguin Books 1992) 164.

33 Nixen (n 26) 384.

34 Williams (n 32) 307.

35 Browning (n 33) 166.

36 ibid, 172.

37 Stanley Milgram, Obedience to Authority: An Experimental View (Harper & Row 1974) 1.

38 ibid, 177.

39 Williams (n 32) 308.

40 Schlink, The Reader (n 2) 109.

41 Gary Solis, ‘Obedience of Orders and the Law of War: Judicial Application in American Forums’ (1999) 15 American University International Law Review 481.

42 American Society of International Law, ‘Judgment in Case of Commander Karl Neumann Hospital Ship “Dover Castle”’ (1921) 16 AJIL 704.

9

10

13

2015

Exeter Student Law Review

Vol.1/Issue.1

International Military Tribunal [1947] 1 Trial of The Major War Criminals Before The International Military Tribunal 10.

44 Regina v Smith 17 Special Courts Reports of Cape of Good Hope, 56 (S. Af. 1900).

45 Helen Pidd, ‘John Demjanjuk, the 'littlest of little fish', convicted for Nazi atrocities’ (The Guardian, 12 May 2011) <http://www.theguardian.com/world/2011/may/12/john-demjanjuk-guilty-nazikillings> accessed 16 December 2013.

46 IMT, judgment of 1 October 1946, in The Trial of German Major War Criminals. Proceedings of the International Military Tribunal sitting at Nuremberg, Germany, part 22 (22 August 1946 to 1 October 1946) 447.

47 Williams (n 32) 307.

48 Schlink, The Reader (n 2) 110.

49 Hall (n 17) 461.

50 Daniel Goldhagen, Hitler’s Willing Executioners: Ordinary Germans and the Holocaust (Knopf Inc 1996).

51 Geoff Eley, Ordinary Germans, Nazism, and Judeocide (University of Michigan Press 2000) 11.

52 Tony Paterson, ‘Former SS man charged with taking part in massacre at French village that killed 642’ (The Independent, 8 January 2014) <http://www.independent.co.uk/news/world/europe/former-ss-man-charged-with-taking-partin-massacre-at-french-village-9047488.html> accessed 8 January 2014.

53 Samantha Gregson, ‘Ex-SS Soldier, 88, Charged Over Nazi Massacre’ (Sky News, 9 January 2014) <http://news.sky.com/story/1192372/ex-ss-soldier-88-charged-over-nazi-massacre> accessed 11 January 2014.

54 Sarah Marsh, ‘Former SS soldier, 88, charged over 1944 village massacre in France’ (Reuters, 8 January 2014) <http://www.reuters.com/article/2014/01/08/us-germany-nazi-massacreidUSBREA071G320140108> accessed 10 January 2014.

55 Williams (n 32) 308.

43

14

The Impact Of The Human Rights Act 1998 On The Principle Of Parliamentary Sovereignty

THE IMPACT OF THE HUMAN RIGHTS ACT 1998 ON THE PRINCIPLE OF PARLIAMENTARY SOVEREIGNTY Timothy Chen, 11/12/2014 This paper discusses the impacts of the Human Rights Act (HRA) on the doctrine of parliamentary sovereignty. Beginning with a reflection of how an absolute notion of legislative supremacy may have lost its relevancy within the British constitutional structure, this paper argues that the HRA is aligned to political constitutionalism, and constitutes an instrument which was aimed at preserving the residual primacy of Parliament within the domestic sphere. As the position against arbitrary discretion has remained constant even after the implementation of the HRA, it may be possible to attribute the decrease of Parliament’s sovereignty domestically towards a growing form of common law radicalism. The paper concludes by commenting on how a repeal of the HRA in favour of a conversion to a new British bill of rights may cause further uncertainty with regards to the future of Parliament’s sovereignty.

The supremacy of Parliament, once viewed as the ‘proxy for the exercise of the popular will’ (pouvoir constituent), enjoying a certain form of absolutism in sovereignty, has suffered many significant incursions into its primacy within recent times.1 Amongst these factors suggesting possible constitutional reforms lies the Human Rights Act 1998 (HRA),2 which has since developed into one of the most controversial pieces of legislation within the United Kingdom (UK).

This paper aims to examine the impacts of the HRA against the declining principle of parliamentary sovereignty. It will begin by establishing the changing nature of legislative supremacy. The paper will then review the possible incursions of this principle by the HRA. It will subsequently assert that the HRA primarily strengthens the residual primacy of Parliament amidst the current political uncertainty. It will then attribute the growth of common law radicalism as the key domestic factor that threatens the supremacy of the legislation and finally highlight the merits of sections 4 and 19 of the HRA as essential instruments of political constitutionalism.

THE CHANGING NATURE OF PARLIAMENTARY SOVEREIGNTY The orthodox notion of an absolute conception of parliamentary sovereignty has had its relevancy challenged within the constitutional structure of the UK.3 Issues emerging from the relationship between domestic and community laws after Factortame and the conventional limitations as a result of the various devolution statutes, especially after the Scottish referendum, have been

15

2015

Exeter Student Law Review

Vol.1/Issue.1

asserted to have ‘destabilised the existing constitutional order’.4 Additionally, factors such as the greater recognition of legal constitutionalism catalysed by the expanding influence of human rights may have contributed to these efforts in securing conformity to a more fundamental form of democratic constitutionalism.5 Hence, once held as the key doctrine underlying the British constitution,6 the Diceyan principle has since paved the way for other increasingly qualified definitions.7 However, despite the arguments claiming the HRA as the ‘cornerstone of the new constitution’,8 the act may have been effective in reconciling the primary purpose of a greater protection for fundamental rights under the orthodox definition of legislative supremacy.

IMPLIED REPEAL, THE EXTENT OF INCORPORATION AND JUDICIAL REVIEW One of the issues created by the HRA against the Diceyan doctrine lies within the principle of implied repeal being rendered nugatory. 9 Barber asserts that one of the key principles behind the continuing primacy of Parliament lies in the inability to impose substantive restrictions upon itself, hence the implied legitimacy of subsequent statutes.10 As section 3 of the HRA requires the courts to interpret ensuing acts of Parliament as ‘convention compatible’,11 conflicts between statutes involving the HRA would not inevitably result in the repeal of the former, thus disregarding the relevance of this fundamental rule. However, the main substantial claims of legal constitutionalism exist principally within two further categories, which appear to be greater challenges towards Parliament’s supremacy.

The first of these claims lies within the injection of Strasbourg jurisprudence into domestic common law.12 Although section 2 of the HRA was initially designed by Parliament as a provision to limit the influence of this jurisprudence within the domestic sphere to allow for a greater margin of appreciation,13 courts have departed from this intention by generally applying a binding status to decisions from Strasbourg - treating it as a ‘ceiling’.14 The granting of Strasbourg jurisprudence with a status of precedence similar to the Luxembourg courts may therefore diminish the prevalence of legislation in a substantial manner.15 The second issue would be the increased powers of judicial interpretation through section 3 and its possible intrusion into the legislative domain.16 Ewing suggests that section 3 would ‘extend the current rule of construction’, and hence the obligation to interpret acts of Parliament as ‘convention compatible’ provides the judiciary with discretionary powers over the intentions of 16

The Impact Of The Human Rights Act 1998 On The Principle Of Parliamentary Sovereignty

Parliament and subsequently on the compatibility of statutes.17 Judicial interpretation on the pretext of ‘convention compatibility’ has since effectively resulted in instances where the courts have manifestly departed from the clear and express provisions of statutes, and thus may have encroached into the legislative scope.18 POLITICAL CONSTITUTIONALISM With regards to the principle of implied repeal, it is essential to distinguish between the impacts of the European Communities Act 1972 (ECA) and the HRA vis-à-vis parliamentary sovereignty.19 In contrast to the ECA where the courts are given the ability to resolve issues of compatibility between statutes,20 the validity of the statute in question pursuant to the HRA is ultimately left as a prerogative of the existing Parliament. Furthermore, as suggested by Laws LJ, the HRA may be classified as a ‘constitutional statute’, which may not be impliedly repealed nor subjected to substantial amendments.21 Although this argument may not be aligned to orthodox definitions, it may be reconciled with the definition furthered by Heuston, where manner-and-form restrictions are endorsed.22 In addition, the deference of domestic courts towards Strasbourg jurisprudence may have substantial links towards reinforcing political constitutionalism.

Bellamy argues that it could conversely be viewed as a form of deference towards Parliament, whereby the judiciary intended to adhere to the treaty obligations as well as the initial intentions in avoiding recourse in Strasbourg.23 Overall, the courts have qualified this binding principle, both in regards to cases that do not apply to the UK, as well as where a larger margin of appreciation should be applied.24 AMBIGUITY WITHIN THE JUDICIARY Although discretionary elements have always been a key constitutional norm within the prerogative of the judiciary, the position on arbitrary discretion going beyond the ‘sphere of interpretation’ and trespassing beyond the ‘scope of legislation’ has not been altered by the implementation of the HRA.25 The HRA was intended to direct judges through a ‘specific and democratically enacted list of rights’, in contrast to vague and liberal notions of morality.26 In R v A (No. 2), Lord Steyn argued that the obligation to interpret statutes under s.3 applies ‘even if there is no ambiguity in the language’.27 Conversely, Lord Hope has highlighted the qualification of the obligation, stating that it does not give the judiciary the ‘power to legislate’.28 Similarly, Lord Nicholls and Lord Bingham have established that such acts may have ‘crossed the boundaries between 17

2015

Exeter Student Law Review

Vol.1/Issue.1

interpretation and amendment’,29 and thus amount not to ‘judicial interpretation but judicial vandalism’.30 Hence, what might be referred to as an impact of the HRA contributing towards the deterioration of parliamentary sovereignty may thus be better ascribed as an illegitimate departure from current constitutional principles due to judicial radicalism.

COMMON LAW RADICALISM As parliamentary sovereignty derives its legitimacy from a number of constitutional factors such as the common law principle of ‘judicial obedience’,31 it is crucial to examine this relationship. Wade highlights that the authority of legislation is largely dependent on judicial deference, and hence ultimately results in a ‘political fact’, which may be alterable through a ‘constitutional revolution’.32 Additionally, O’cinneide argues that the changing political conditions, fuelled by shifting circumstances have assisted in demands for ‘enhanced legal regulations of the exercise of state power’, suggesting a possible shift in power within the constitutional structure.33 From the statements of Coke CJ in Dr Bonham’s Case,34 to Lord Steyn and Lord Hope’s obiter in Jackson,35 the decrease in judicial ‘obedience’ and the rise of activism has contributed profoundly towards the decline of the primacy once accorded to the representative body of governance.36 Therefore, as common law once constituted the foremost source of protection for fundamental rights,37 it is conceivable that the HRA would seem like the key domestic destabilising factor of legislative supremacy, although the issue lies within a more fundamental constitutional issue.

THE DECLARATION COMPATIBILITY

OF

INCOMPATIBILITY

AND

STATEMENTS

OF

Albeit the abovementioned factors, the HRA contains essential instruments which strengthens the residual notions of Parliament’s sovereignty. The inability of the judiciary to strike down legislation,38 its limited effectiveness in significant cases including Belmarsh and Hirst,39 and the reversion of discretion back to the legislation enhances the concept that the declaration of incompatibility supports the primacy of Parliament.40 Additionally, the unenforceable nature of statutes leaves the main application of section 19 as a safeguard against the interpretative powers of the judiciary.41 Bellamy suggests the perception that Parliament, with the aid of the Joint Committee on Human Rights (JCHR), has sufficiently deliberated on convention compatibility may have contributed significantly towards the deference of the

18

The Impact Of The Human Rights Act 1998 On The Principle Of Parliamentary Sovereignty

courts in a case involving the Communications Act.42 Although it remains unclear, a switch from the HRA to a British Bill of Rights entrenched within the constitutional structure may confer greater powers upon the judiciary, and prove to be a greater triumph of legal constitutionalism over parliamentary sovereignty.

CONCLUSION This paper has examined the possible incursion of the HRA upon the orthodox notions of parliamentary sovereignty, and illustrated how it may be regarded as a statutory act that reinforces legislative supremacy amidst its decline. It has highlighted the distinction between the substantive impacts of the ECA in comparison to the HRA, and attributed the apparent contraventions towards judicial radicalism. However, a major limitation in a legal analysis of this issue lies within the notion that form and substance must be differentiated. Although Parliament may continue to remain sovereign as a matter of ‘constitutional legality’, substantial powers have been allocated to the judiciary as a matter of ‘constitutional practice’.43 Therefore, although scholars such as Wade and Bradley argue for a form of continuing sovereignty in which the prerogative of Parliament to repeal acts remains within its discretion,44 the political reality may be far from such.

Colm O’cinneide, ‘The Human Rights Act and the Slow Transformation of the UK’s ‘Political Constitution’ [2012] Institute For Human Rights Working Paper, 2049-2138, 4 <http://www.ucl.ac.uk/human-rights/research/working-papers/docs/colm-o_cinneide> accessed 25 November 2014.

2 Human Rights Act 1998.

3 A. V. Dicey, Introduction to the Study of the Law of Constitution (8th edn, Liberty Fund 1982); Nick Barber, ‘The Afterlife of Parliamentary Sovereignty’ [2011] 9 Int J Constitutional Law 145.

4 Barber (n 3); Alison Young, Parliamentary Sovereignty and the Human Rights Act (Hart, 2008) 11; Kenneth Keith, ‘Sovereignty at the Beginning of the 21st Century: Fundamental or Outmoded?’

[2004] 63 C.L.J. 3, 581; O’cinneide (n 1) 6.

5 O’cinneide (n 1) 6.

6 Vernon Bogdanor, The New British Constitution (Hart, 2009).

7 R. F. V. Heuston, Essays in Constitutional Law (2nd edn, Stevens 1964); H. L. A. Hart, The Concept of Law, (2nd edn, OUP 1994); Barber (n 3) 147.

8 Bogdanor (n 6) 49.

9 Ellen Street Estates Ltd v Minister of Health [1934] 1 K.B. 590.

10 Barber (n 3).

11 Human Rights Act, s 3.

12 Richard Bellamy, ‘Political Constitutionalism and the Human Rights Act’ [2011] 9(1) Int J Constitutional Law 86, 97.

13 HL Vol. 584, cols 1268-1270 (January 19, 1998) cited in Keith Ewing, ‘The Human Rights Act and Parliamentary Democracy’ [1999] 62 Modern Law Review 86.

1

19

2015

Exeter Student Law Review

Vol.1/Issue.1

Ewing (n 13); R v Special Adjudicator, ex parte Ullah [2004] U.K.H.L. 26 (Lord Bingham); R (Chester) v Secretary of State for Justice [2013] 121 (Lord Sumption).

15 Keith Ewing and Tham Joo-Cheong, ‘The Continuing Futility of the Human Rights Act’ [2008] P.L. Win 686.

16 Bellamy (n 12) 102.

17 Ewing (n 13) 87.

18 R v A (No. 2) [2001] 1 A.C. 45; Ghaidan v Godin-Mendoza [2004] 3 W.L.R. 113.

19 Barber (n 3).

20 ibid 150.

21 Thoburn v Sunderland City Council [2002] E.W.H.C 195.

22 Heuston (n 7).

23 Ewing (n 13) 86.

24 Kay v Lambeth London Borough Council [2006] U.K.H.L. 28, 44; Brown v. Scott [2003] 1 A.C. 733; R v Horncastle [2009] U.K.S.C. 14.

25 Bellamy (n 12) 106.

26 Sandra Fredman, ‘Scepticism under Scrutiny: Labour Law and Human Rights’, cited in Bellamy (n 12) 105.

27 R v. A (No. 2) (n 18) [44] (Lord Steyn).

28 Bellinger v Bellinger [2003] 2 A.C. 467 [67] (Lord Hope).

29 Re S (Care Order) [2002] 2 A.C. 291 [40] (Lord Nicholls).

30 R (Anderson) v Secretary of State for the Home Department [2003] 1 A.C. 837 [30] (Lord Bingham).

31 H. W. R. Wade, ‘The Basis of Legal Sovereignty’ [1955] C. L. J. 172, 182 cited in Nicholas Bamforth, ‘Parliamentary Sovereignty and the Human Rights Act 1998’ [1998] P.L. Win 572.

32 H. W. R. Wade, ‘The Basis of Legal Sovereignty’ (1955) 13 C.L.J. 187.

33 O’cinneide (n 1) 6.

34 Thomas Bonham v College of Physicians [1610] 8 Co. Rep. 107 (Coke CJ).

35 Regina (on the application of Jackson and others) v Attorney General [2006] 1 A.C. 262.

36 Lord Woolf, ‘The Rule of Law and a Change in Constitution’ (Squire Centenary Lecture, Cambridge, 3 March 2004) <http://www.law.cam.ac.uk/faculty-resources/summary/lord-woolfsquire-centenary-lecture-the-rule-of-law-and-a-change-in-constitution/1415> accessed 25 November 2014; Anisminic Ltd v Foreign Compensation Commission [1969] 2 A. C. 147.

37 Malone v Metropolitan Police Commissioner [1979] 2 ALL E.R. 620; Derbyshire County Council v Times Newspapers [1993] A.C. 534, R v Secretary of State for the Home Department, ex p Leech [1994] QB 198, R v Lord Saville of Newdigate, ex p A [2000] 1 W.L.R 1855.

38 Human Rights Act 1998, s 4.

39 A, X and Y and Others and Secretary of State for the Home Department [2005] 2 A.C. 68 cited in Ewing and Tham (n 15); Othman (Abu Qataada) v UK ECHR 8139/09; Hirst v UK (No. 2) (2006) 42 EHRR 41, Smith v Scott [2007] C.S.I.H. 9.

40 O’cinneide (n 1) 13.

41 Pickin v British Railways Board [1974] A.C. 765.

42 Communications Act 2003; R (Animal Defenders International) v. Secretary for Culture, Media and Sport [2008] U.K.H.L. 15 cited in Bellamy (n 12).

43 Ewing (n 13) 92.

44 H. W. R. Wade, Constitutional Fundamentals (Stevens & Sons, 1980) 26-27; Anthony Bradley, ‘The Sovereignty of Parliament – Form or Substance?’ cited in Barber (n 3).

14

20

Should Islamic Courts Be Established In Britain?

SHOULD ISLAMIC COURTS BE ESTABLISHED IN BRITAIN? Laura Cope, 27/11/2014 This essay discusses the attitude towards Islamic Law in Britain as a whole, and examines the fast-growing development of Shari’a councils. There is great hypocrisy shown by Britain towards Islam, for example, the comparison between finance laws which are compliant with Islam and the lack of legal support for Muslims in family matters. Archbishop Rowan Williams’s speech on the subject sparked huge debate, however this essay goes even further towards exploring a more specific solution to the issue by discussing the academic theories of integrating Islamic Law with Britain in a way which satisfies both religious and social concerns. One significant problem within this debate from a Muslim perspective is how to interpret the main sources of Islam in a way which is applicable to living amongst Western culture. Many scholars previously thought that the ability to make rulings on such matters ended many years ago, however the following essay demonstrates how this may not be the case.

The following article will explore the complex question of whether Islamic Courts should be established in Britain, covering several topics. It will first examine the development of Shari’a councils, considering their criticisms, including women’s rights supporters, who have a key role in evaluating the councils. It will then present the idea of other religious courts as a possible model for Islamic Courts in Britain. Finally, academic debate on the topic will be considered, such as Fishman’s doctrine of fiqh al–aqilliyat and the implications it may have on Western Muslims,1 concluded by evaluating Dr Rowan Williams’s ideology for more sophisticated Shari’a councils in Britain.2 Firstly, to give context to the issue in question, this essay will explore an overview of the presence of Muslims in Britain. Islam is the second largest religion in the UK, where the Muslim population is almost 3 million, in comparison to Christian population of 33 million people,3 and 263,346 Jews.4 The first large group of Muslims came to Britain about 300 years ago, and records from as far back as 1873 show Muslims working in Britain.5 Muslims have been in Britain for centuries, yet are unfortunately still regarded as ‘foreign’. Sir Richard Burton wrote in 1894 that ‘England is ever forgetting that she is at present the greatest Mohammadan empire in the world’6 Adding to this, Pearl and Menski describe a new type of Shari’a altogether in Britain and how the state displays its ignorance towards British Muslims: ‘[t]hrough the process of legal pluralism, there is a new form of Shari’a, 7 English Muslim Law, or Angrezi Shariat, which remains officially unrecognised by the state

21

2015

Exeter Student Law Review

Vol.1/Issue.1

but is now increasingly in evidence as a dominant legal force within the various Muslim communities in Britain’. Modood also writes about the struggle for multicultural citizenship and the need for greater recognition by the state.8 One of the first occasions where Muslim concern came into the public eye in post war Britain was the Rushdie Affair, where Ayatollah Ruhollah Khemeini issued a fatwa for the killing of Rushdie, the author of the book 'Satanic Verses'. This lead to the common misconception of the word 'fatwa', which means 'legal opinion', not 'death sentence' as people today still believe.

In recent years, Islam has more frequently been recognised by the media and public – although, rarely in a positive or accurate light. The British media are responsible for much of the misunderstanding of the faith, and situations such as the above only further support the view held by many that Islam is a violent religion. Since the 9/11 and 7/7 attacks on the West by a group of Muslim extremists, Islamophobia is commonplace. However other religious extremists, such as the Hutaree Militia, a Christian movement group, are viewed as separate to Christianity as a whole and other Christians aren’t generalized based on the extremists group’s actions or words. Sadly, this isn’t the case with Islam, where distrust is a huge barrier and the French attempting to ban the burqa in 2009 is just one example of many demonstrating this, with public comments on reports about the topic including that allowing burqas is ‘asking for a bomb’.9 Islam is portrayed as inherently violent, and emphasis is placed on the hudud punishments of stoning and amputation, when in reality, Islam is a peaceful religion based on the word of God revealed to the prophet Muhammad, and the punishments are rarely carried out in practice as criteria required to fulfil them is extensive. If Islamic law courts were established in Britain, misconceptions such as these must first be addressed in order to implement a just legal system.

Public bodies appear to have a largely ignorant attitude towards the British Muslim population, and seemingly adopt the principle of 'leaving them to it'. This attitude has prompted development of unregulated Sharia councils in areas of the UK with dense Muslim populations, such as Bradford and parts of London. There are now an estimated 85 councils in Britain acting as arbitration courts, and 98% of the case load encompasses women seeking an Islamic divorce from a nikah marriage contract.10The Arbitration Act 1996 offers a method of interface between arbitration bodies and unofficial courts and provides the law under which the councils operate.

Nonetheless, there are many critics of Shari'a councils. Muslim women’s rights under these councils is the issue most discussed by scholars and MPs. Baroness Cox is outspoken in defending the rights of Muslim women, setting up the 22

Should Islamic Courts Be Established In Britain?

Arbitration and Mediation Services Equality Bill 2014-15 against this. In the second reading of the bill in 2012, she described anecdotes of women she met who have felt pressured by family members and Shari'a councils, and who are unaware of their rights in English courts.

Cassandra Balchin also wrote in support of this ‘[t]he Sharia Councils here in Britain are among the most conservative and gender discriminatory in the world.’11 Shari’a councils aren’t allowed to intervene in matters involving child custody, yet their websites feature Shari’a rulings on children, showing how regulation of these bodies is desperately needed. These concerns suggest that educating Muslim women on their rights under English law would be beneficial, however in Muslim communities, a woman who has sought an English civil divorce may still not be recognised as having an Islamic divorce – talaq - which could cause problems with her family and future spouses. It costs a Muslim woman £400 to obtain an Islamic divorce from one of these councils, yet can cost a man nothing.12 Also, it’s important to note, that if a husband refuses to declare talaq there is little the council can do for the woman wanting a divorce. Shari’a councils are useful in theory, however these points highlight the possible disadvantages in establishing Islamic Courts in Britain. They would need to be strictly regulated to ensure that the type of discrimination Baroness Cox describes does not happen.

A possible system to model Shari’a councils upon are Jewish Beth Din Courts, practiced in Britain for decades. These arbitration courts resolve civil issues from business matters to divorce. Once both sides have voluntarily agreed to have their case heard in a Beth Din Court, its eventual decision is binding. 13 Jewish and Islamic law are much closer to each other than to other secular legal systems so if Shari’a councils were developed similarly to the Beth Din Courts, they could provide a useful outlet for Muslims to resolve disputes. A case in 2013 saw Baker J allow religious arbitration in a Beth Din Court to be used in an issue involving children.14 If Shari’a councils became officially recognised by the state, courts may be encouraged to allow them to be used in cases involving Muslims. This would also have the effect of reducing the number of cases heard in English courts, which, taking into account the increasing Muslim population would reduce the cost of litigation, as Lord Woolf attempted to highlight in his reforms of 1996.15 Many practices in Islam could appear to be gender discriminatory to Western observers, and to simply state that they do not protect women and should be stopped altogether is not sufficient, instead attempts should be made by Shari’a councils to interpret the sources of Islam in a way which can be applicable to Western Muslims.

23

2015

Exeter Student Law Review

Vol.1/Issue.1

Ijtihad, the Islamic legal concept that translates to ‘effort’, is the attempt to make rulings on the understanding of the four main sources of Islam. According to Joseph Schacht, the right to exercise ijtihad was restricted after the tenth century;16 Hallaq, on the other hand, contends that the ‘gates of ijtihad’ were never closed,17 and so itjihad could be used today, using the newer, secondary sources of Islam suggested in the doctrine of fiqh al –aqalliyyat, developed by the scholar, Shammai Fishman who explored an academic view of Western Muslims, which has been increasingly discussed in recent years. The doctrine asserts that Muslim minorities, especially those residing in the West, deserve a special new legal discipline to address their unique religious needs. Introduced in the 1990’s, and founded by Al- awani and Al- qaradawi, the doctrine looks at several issues facing British Muslims, one of which regards the territories of their non- Muslim countries of residence. Traditionally, Islam divides the world into 2 territories, the land of war and the land of Islam. Historical examples have indicated the possibility of truces, where countries preserve their internal autonomy in exchange for tribute. They become dar al-sulh (land of truce/peace). Whether the West can be seen as a land of peace is important for modern Muslims, as they wouldn’t be permitted to live in a land of war. Alamiyyat al-islam answers this by stating that Islam is a global religion, including the notion that eventually all lands will be under Muslim rule.18 Fiqh al – aqalliyyat makes it acceptable for Muslim’s to live in the lands of truce, as it is seen as an opportunity for them to spread the message of Islam to the world. However, this separate legal system for Western Muslims has spawned critics, the majority of which argue that this shows special treatment towards them. Khalid Mahmood, a labour MP talks about a British Islamic legal system creating a two–tier society, which is ‘highly retrograde…[and] will segregate and alienate the Muslim community in Britain’.19 However, having separate systems between groups of Muslims, as this doctrine promotes may alienate Western Muslims from Muslims in the rest of the world, causing friction that’s desperately not needed within the religion. It’s an interesting notion that British Muslims may not want a separate legal system due to the tensions it may cause for them in British communities. The main issue here is the great misunderstanding of Islam, and Shari’a itself. Mahmud Al Rashid laments the ‘massive misunderstanding about what Shari’a is. It’s not a single law’.20 If there was greater education given and more frequent debates between politicians about what Islam is at its core, and what the Shari’a councils should be then they may be more widely accepted. This further exacerbates why it’s a great shame that most politicians tentatively step around the subject of Islam in Britain, in fear of expressing an opinion that may seem unpopular.

24

Should Islamic Courts Be Established In Britain?

Dr Rowan Williams, Archbishop of Canterbury, gave a speech in 2008 supporting Shari'a law recognition.21 The reaction to his speech was highly impassioned, with some headlines suggesting that he wanted to bring hudud punishments to Britain.

However Lord Phillips, a senior judge, supported the speech, stating British Muslims should be able to use Shari'a to decide financial and marital disputes and it was 'not very radical' for Dr Williams to say so, stating ‘[t]here’s no reason why principles of Shari'a law, or any other religious code, shouldn’t be the basis for mediation or other forms of alternative dispute resolution’.22 Indeed, in financial Islamic practice, the Treasury supports the spread of Shari'a-compliant banking, altering the stamp duty land tax in 2003 to benefit Muslim homeowners.23 This is contradictory as, on the one hand, Britain wishes to conduct business and financial matters with Muslims under their laws, however in other aspects of life, Muslims don’t have regulated recognition of Shari’a. This appears to be hypocritical, and doesn’t seem fair to the Muslim community. The way in which Shari’a-compliant banking has been introduced could be another possible direction to look at for other aspects of Shari’a, such as marital disputes.

In conclusion, the Archbishop envisaged a 'much enhanced and quite sophisticated version of Islamic Shari'a councils.’24 While his speech brought awareness of the debate to the mainstream, he lacked specific points on how to achieve this ideology. Although it would be the most desirable outcome, the reality of achieving this will be immensely delicate, displayed by a recent e–petition on an official website proposing the complete ban of Shari’a law in the UK, which received enough signatures to result in a response from the government.25 Menski’s angrezi shariat, and Fishman’s fiqh al-aqilliyat doctrine show how a hybrid system may be promoted in a way which conforms to Islamic values whilst also integrating Western concepts. Public figures like the Archbishop and Lord Phillips provide theories to show that there’s definitely a case for establishment of Islamic Courts in Britain, and not an insignificant case at that. However, the opposition is equally as adamant that there’s no place for a separate system. Trying to find a middle ground for providing Muslims with a method of mediating under their laws whilst protecting women’s rights and convincing the public that, despite what the media say, stoning penalties will not slowly work their way into British law is a difficult task, especially as discussion of Islam invokes strong reactions. Nonetheless, the fact that Jewish Beth Din Courts are a success makes it a possibility that a similar system could work for Muslims in Britain. Indeed, it would be unjust if Muslims were not granted the right and recognition to set up a similar system purely on the basis of media inflammation of a minority group of terrorists. The biggest problem here isn’t about the law, but Islam in general, and once perceptions are improved

25

2015

Exeter Student Law Review

Vol.1/Issue.1

of the religion as a whole then questions of law will be much easier to facilitate and discuss. Discussion alone is a positive step, and a much needed one.

Shammai Fishman, 'Fiqh al-Aqalliyyat: A Legal Theory for Muslim Minorities' [2006] Research Monographs on the Muslim World Series No.1, Paper 2.

2 Rowan Williams, ‘Civil and Religious Law in England: a religious perspective’ (Royal Courts of Justice, 2008) <http://rowanwilliams.archbishopofcanterbury.org/articles.php/1137/archbishopslecturecivil-and-religious-law-in-england-a-religious-perspective> accessed 13 November 2014.

3 Soeren Kern, 'Britain's Islamic Future' (Gatestone Institute 2013) <http://www.gatestoneinstitute.org/3735/britains-islamic-future> accessed 13 November 2014.

4 Simon Rocker, 'Census 2011: The Jewish Breakdown' (The JC 2012) <http://www.thejc.com/news/uk-news/94111/census-2011-the-jewish-breakdown> accessed 13 November 2014.

5 'History of Islam in the UK' (BBC 2009) <http://www.bbc.co.uk/religion/religions/islam/history/uk_1.shtml> accessed 15 November 2014.

6 Sir Richard Burton (Ed), The Book of a Thousand Nights and a Night (1st edn, The Kama Shastra Society 1885) 1.

7 David Pearl and Werner Menski, Muslim Family Law (3rd edn, Sweet and Maxwell 1998) 51-83.

8 T.Modood and F.Ahmad, 'British Muslim Perspectives on Multiculturalism' [2007] TCS, 2-10.

9 S.P, 'Why the French are so strict about Islamic head coverings ' (economist 2014) <http:/www.economist.com/blogs/economist-explains/2014/07/economist-explains-2> accessed 12 November 2014.

10 Charlotte Proudman, 'A Practical and Legal Analysis of Islamic Marriage, Divorce and Dowry' (Family Law Week 2012) <http://www.familylawweek.co.uk/site.aspx?i=ed95364> accessed 11 November 2014.

11 Cassandra Balchin, 'Having Our Cake and Eating It: British Muslim Women' (Open Democracy 2011) <https://www.opendemocracy.net/5050/cassandra-balchin/having-our-cake-and-eating-itbritish-muslim-women> accessed 15 November 2014.

12 Jane Corbin, ‘Inside Britain’s Sharia Courts’ (Telegraph 2013) <http://www.telegraph.co.uk/news/uknews/law-and-order/9975937/Inside-Britains-Shariacourts.html> accessed 13 November 2014.

13 Nick Tarry, 'Religious Courts Already In Use' (BBC News 2008) <http://news.bbc.co.uk/1/hi/uk/7233040.stm> accessed 14 November 2014.

14 AI v MT [2013] ALL ER (Feb) (D) 23 (EWHC)(Fam).

15 Lord Woolf, Access to Justice, Final Report (1996) available online at <http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/civil/final/index.htm> accessed 14 November 2014.

16 J. Schacht, An Introduction to Islamic Law (1st edn, Clarendon Press 1964) 69-75.

17 Wael B. Hallaq, 'Was the Gate of Ijtihad Closed?' [1984] International Journal of Middle Eastern Studies, 3-41.

18 Fishman (n 1), paper 2.

19 The Christian Institute, 'Top Judge Backs Sharia Law 'Role'' (Christian Institute 2008) <http://www.christian.org.uk/news/top-judge-backs-sharia-law-role/> accessed 12 November 2014.

1

26

Should Islamic Courts Be Established In Britain?

Christopher Hope and James Kirkup, 'Muslims in Britain should be able to live under sharia, says top judge' (Telegraph 2008) <http://www.telegraph.co.uk/news/uknews/2242340/Muslims-inBritain-should-be-able-to-live-under-Sharia-law-says-top-judge.html> accessed 13 November 2014.

21 Williams (n 2).

22 Machteld Zee, 'The Legal Status and Future of Sharia Councils' (Lawyers Secular Society 2013) <https://lawyerssecularsociety.wordpress.com/2013/12/19/the-legal-status-and-future-ofsharia-councils/> accessed 11 November 2014.

23 Andy McSmith, 'The Big Question: how do Britain's sharia courts work, and are they a good thing? ' (Independent 2009) <http://www.independent.co.uk/news/uk/home-news/the-big-questionhow-do-britains-sharia-courts-work-and-are-they-a-good-thing-1724486.html> accessed 11 November 2014.

24 Williams (n 2).

25 Gov.uk, 'Ban all sharia law in the UK' (2014) <http://epetitions.direct.gov.uk/petitions/48352> accessed 15 November 2014.

20

27

2015

Exeter Student Law Review

Vol.1/Issue.1

THE VALIDITY OF TRUSTS: IS THE 'BENEFICIARY PRINCIPLE' STILL A RELEVANT REQUIREMENT? Emma Cross, 08/01/2014 This paper reflects on the extent to which it is recognised that a trust must be directly invested in an individual in order to be deemed valid. Beginning with an examination of the strict rule under Saunders v Vautier, this paper argues that there has been some momentum away from the view that a beneficiary must have proprietary rights in the trust property. Such a view can be demonstrated by looking to where the equitable interest lies in relation to discretionary trusts and also the emergence of some support for abstract purpose trusts based on a purposive interpretation of the beneficiary principle. A brief analysis of the potentially positive impact of a more flexible approach to the beneficiary principle will be made in relation to unincorporated associations. The paper concludes by commenting that an indirect link to a beneficiary should not be a barrier to the finding of a valid trust. â&#x20AC;&#x2DC;The beneficiary principle is a requirement that there must be an ascertainable beneficiary or beneficiaries for a trust to be valid. The policy underlying the principle, and arguably the whole of the law of trusts, is that there must be a beneficiary in whose favour the trust can be exercised by the court and that there must be beneficiaries with proprietary rights in the trust fund.Ęź1 The beneficiary principle, as defined by Hudson, is still an important requirement of the law of trusts.2 By identifying who the beneficiaries are, the trustees and the beneficiaries are aware of the important rights that beneficiaries have to enforce or revoke the trust under the Saunders v Vautier (Saunders) rule and therefore the court can uphold the trust's validity.3 However, there are two issues, which will be discussed in relation to the beneficiary principle.

Firstly, there is some discussion as to whether the beneficiaries must have proprietary rights in the trust property or if these are purely personal. It will be further discussed in the context of discretionary trusts. Secondly, the extent to which abstract purpose trusts are void is questionable in light of the conflicting decisions of Leahy v AG for New South Wales (Leahy),4 Re Denley's Trust Deed (Re Denley)5 and Re Lipinski's Will Trusts (Re Lipinski).6 The problem surrounding unincorporated associations will be considered here before concluding.

PROPRIETARY OR PERSONAL RIGHTS It is an important principle of trusts law that a court can determine who is entitled to benefit from a trust fund. The policy underlying the beneficiary principle can be 28

The Validity Of Trusts: Is The ‘Beneficiary Principle’ Still A Relevant Requirement?

found in Morice v Bishop of Durham in that ʻthere must be somebody, in whose favour the court can decree performance.ʼ7 It is important to clearly identify a beneficiary due to the power invested in beneficiaries to hold the trustee to account.8 It is particularly significant in light of the decision in Saunders which ʻdemonstrates that ultimately each beneficiary has an equitable proprietary right in the trust propertyʼ.9 It was held that where all the beneficiaries act together sui generis they can instruct the trustee to distribute (unless aged under 18 or if against equity's darling).10 By clearly identifying the beneficiaries in the event that such a claim against a trustee becomes necessary, the court can be assured it is exercising its power for the benefit of the beneficiaries.11 However, in turning to the first issue with the beneficiary principle outlined above, there is discussion as to whether beneficiaries must have equitable proprietary rights in the trust property or whether only personal rights in relation to the trustee will suffice.12 The concept that beneficiaries only have personal rights contradicts the view that ʻequitable ownership is after all ownership and must be located somewhere.ʼ13 In terms of policy and fairness it makes sense that it is located in the beneficiaries as they are the individuals who stand to benefit and would no doubt be concerned if they had no tangible rights to use against the trustee in relation to the actual trust property. It is submitted that beneficiaries actually have both proprietary and personal interests.14 The beneficiaries have a proprietary interest in the trust property as well as a right to sue the trustee for breach of trust. However, the discretionary trust poses a dilemma for this viewpoint.

The Saunders rule depicts that all beneficiaries have proprietary rights in the property.15 However, under a discretionary trust in which it is up to the trustee whom to distribute to, it is arguable that ‘the beneficial interest is in suspense until the trustees exercise their discretion’.16 Although a beneficiary should be one of a clearly identified class of people, they are not guaranteed to get any trust property until the trustee decides to exercise their power in favour of the beneficiary.17 In this case it could be argued that beneficiaries here just have personal rights to sue the trustees rather than identifiable proprietary rights. As Pettit notes ʻit is very difficult to explain where the equitable interest lies in the case of discretionary trustsʼ.18 However, Hudson's view outlined above, is particularly persuasive in light of the decision in Saunders.19 Indeed, each potential beneficiary has a right: ʻ[T]o be considered as a potential recipient of benefit by the trustees and a right to have his interests protected by a court of equity.ʼ20

29

2015

Exeter Student Law Review

Vol.1/Issue.1

The Saunders rule highlights the importance of having clearly identifiable beneficiaries under a trust. Subsequently, it suggests beneficiaries must be clearly identifiable individuals who are capable of having locus standi to enforce the trust.21 An abstract purpose on the other hand, is clearly not a person and therefore should, on a literal interpretation, lack the capacity to enforce a trust.

With no such capacity a court should be unable to uphold an abstract purpose trust's validity. However, there have been several conflicting decisions, which seem to impact on the Saunders rule.

ABSTRACT PURPOSE TRUSTS: THE IMPACT OF STRICT AND PURPOSIVE INTERPRETATIONS Re Astor's Settlement Trusts (Re Astor) held a trust for advancing the ʻpreservation of the independence and integrity of newspapersʼ to be invalid as the beneficiaries could not be clearly ascertained.22 It appeared to comply with the strict approach to the beneficiary principle, however it was also held that the purpose was in any event too uncertain which suggests that a purpose which is more certain could be upheld. It links into the four exceptions to the beneficiary principle outlined in Re Endacott.23 Re Endacott referred to the pre-existing exceptions to the purpose trust rule for: maintenance of specific animals;24 erection or maintenance of graves or sepulchral monuments;25 saying of Catholic masses in private;26 and the promotion and furtherance of fox-hunting.27 These have been described as ʻconcessions to human sentimentʼ.28 The Court of Appeal held trusts for these specific purposes would only be capable of being upheld in future cases on their precise facts.29 However, when considering the second issue in relation to the beneficiary principle outlined above, the extent to which this approach is applicable is questionable in light of a more flexible approach taken to purpose trusts by focussing on the certainty of the beneficiaries.

The decision in Re Leahy appears to conform to a strict approach to the beneficiary principle by holding there was no trust as the property was left for the purposes of the chosen Carmelite order and not individual nuns.30 However, the decision of Mr. Justice Goff (as he then was) in Re Denley places the strict applicability of the beneficiary principle in doubt by means of a more flexible interpretation.31 Mr. Justice Goff held that as land was left for the benefit of the employees it satisfied the beneficiary principle as employees were ascertainable beneficiaries. When considering Re Leahy, it is unclear why a similar approach to that of Mr. Justice Goff in Re Denley could not have been taken, as the trust was for the benefit of an order of nuns who are surely just as much individuals as the employees in Re Denley.

30

The Validity Of Trusts: Is The â&#x20AC;&#x2DC;Beneficiary Principleâ&#x20AC;&#x2122; Still A Relevant Requirement?

However, the correct approach to be taken has not yet been clearly identified.32 In Re Grant's Will Trust Mr. Justice Vinelott (as he then was) preferred the approach in Re Leahy.33 Whereas, in Re Lipinski, Mr Justice Oliver (as he then was), in accepting Re Leahy's existence, held that as long as there were ascertained or ascertainable beneficiaries who could take an indirect benefit then the strict approach in Re Leahy was unnecessary.34 Contrastingly, the latter approach could be said to impact on Saunders, as beneficiaries who can indirectly benefit is not the same as having a direct proprietary right in the trust property. It seems to lend support to the concept of the beneficiaries' proprietary interest being in suspense, only this time it would be in such a state until the court found the trust to be valid.35 However, the decisions in Re Denley and Re Lipinski seem more focussed on the first element of Hudson's depiction of the beneficiary principle in that there are clearly ascertained or ascertainable beneficiaries.36 Perhaps it is assumed that once the beneficiaries are identified then their interest in the trust property naturally follows, regardless of whether their interest is direct or indirect.37 The assumption could then be applied to discretionary trusts (as discussed above) as rather than there just being a personal right against the trustee, the beneficiary of a discretionary trust arguably has an indirect interest in the trust property as per Re Denley. It would link well to the certainty of objects test as outlined in McPhail v Doulton as it must be possible to say with certainty whether one is or is not within the class of beneficiaries, as long as some beneficiaries are ascertainable.38 UNINCORPORATED ASSOCIATIONS The issues raised in the case law pose an interesting dilemma for unincorporated associations which are not viewed as having legal capacity to enforce proprietary rights under a trust against a trustee.39 Therefore, even though the unincorporated association is intended to benefit by the settlor, without legal personality, the trust would be void as the rule in Saunders would not be applicable on account of there being nobody in whom to vest the property.40 However, if one takes the Re Denley approach then the property is being transferred, not as an abstract purpose trust, but for the individual members of the society, which would satisfy the beneficiary principle to validate the trust.

However, in light of the contentious nature of the Re Denley decision other means of avoiding this issue entirely have been purported. In Re Lipinski Mr. Justice Oliver stated that if a transfer of property vests absolute title in its beneficiaries, it is a gift and therefore the beneficiary principle applicable to trusts need not be considered.41 As a further extension, Neville Estates v Madden42 and Re Recher's

31

2015

Exeter Student Law Review

Vol.1/Issue.1

Will Trusts43 suggest that a more contractual approach could be taken. It would render trust and gift requirements unnecessary on account of the existing contract between all the members of the association on joining which effects the running of the association and therefore its property.44 Therefore, depending on which approach a court is willing to take, or indeed, the nature of the desired outcome, transfers to unincorporated associations can be made. However, it is only really on a Re Denley-based approach that a transfer by trust might be capable of being valid under the beneficiary principle.45 CONCLUSION Hudson's definition of the beneficiary principle works well in cases where the beneficiaries are clearly defined and there are individuals capable of exercising their personal and proprietary rights under the trust fund through the courts.46 However, where a trust appears to benefit an abstract purpose, the courts have taken a more purposive approach to find that such trusts are in fact intended to benefit certain individuals, therefore complying with the beneficiary principle.47 A similar approach can be applied to discretionary trusts and indeed to unincorporated associations. Those who are intended to benefit in the long-term are clear, or at least should be, or the trust will be void regardless of the Re Denley approach. It is submitted that such a purposive approach is needed in order to facilitate transfers which would otherwise be void for uncertainty. Where inappropriate an alternative means in which to give effect to a transfer should remain to be considered by the courts.

Alastair Hudson, Equity and Trusts (7th edn, Routledge 2013) 198.

2 See Re Endacott [1960] Ch 232, 146 (Viscount Simonds) and Hudson (n 1) 198. See further, Graham Moffat, Gerry Bean and Rebecca Probert, Trusts Law (5th edn, Cambridge University Press 2009), 254. See generally, Jill Martin (ed), Hanbury and Martin's Modern Equity (18th edn, Sweet & Maxwell 2008) 418; AJ Oakley (ed), Parker and Mellows Modern Law of Trust (9th edn, Thompson, Sweet & Maxwell 2008) 74.

3 [1841] EWHC Ch J82.

4 [1959] AC 457.

5 [1969] 1 Ch 373.

6 [1976] Ch 235.

7 [1804] 32 ER 656, at [405] (Sir Grant).

8 Hudson (n 1) 181.

9 [1841] EWHC Ch J82. See Hudson (n 1) 181.

10 On this point, see: Emma Hargreaves, 'The Nature of Beneficiaries' Rights Under Trusts' [2011] 25(4) Trust Law International Journal 163.

11 Bowman v Secular Society Ltd [1917] AC 406.

12 Hudson (n 1) 181; this despite the view that this discussion has ʻno real bearing upon the practice of the law, and…would be better abandoned altogetherʼ.

1

32

The Validity Of Trusts: Is The ‘Beneficiary Principle’ Still A Relevant Requirement?

James Harris, 'Trust Power and Duty' [1971] 87(1) Law Quarterly Review 31, 47; see also David Hayton, 'Developing the Obligation Characteristic of the Trust' [2001] 117(1) Law Quarterly Review 96, 96-97, 107; RC Nolan, 'Equitable Property' [2006] 122(2) Law Quarterly Review 232, 233.

14 Hudson (n 1) 181.

15 ibid 183; see further Graham Moffat et al (n 2) 248.

16 Philip Pettit, Equity and the Law of Trusts (12th edn, Oxford University Press 2012) 80.

17 Geraint Thomas, Thomas on Powers (1st edn, Oxford University Press 1998) 268.

18 Pettit (n 16) 92-93; cf Hudson (n 1) 187.

19 Hudson (n 1) 181. Although see the discussion below as to the subtle distinctions which can be made to validate a trust which would otherwise be void for abstract purpose.

20 Gartside v Inland Revenue Commission [1968] 1 AC 553, 617 at [G] (Lord Wilberforce).

21 David Hayton, The Law of Trusts (4th edn, Thomson Sweet & Maxwell 2003) 100-101.

22 [1952] Ch 534, 535 (Roxburgh J).

23 [1960] 2 Ch 232. See also, Graham Moffat et al (n 2) 257. See generally Martin (n 2) 393-395; Oakley (n 2) 74.

24 Pettingall v Pettingall [1842] 11 LJ Ch 176.

25 Re Hooper [1932] 1 Ch 38.

26 Bourne v Keane [1932] 1 Ch 38.

27 Re Thompson [1932] 1 Ch 38. Although given that fox hunting is now illegal as per the Hunting Act 2004 it would be interesting to see whether the court would be minded to uphold a trust for what is arguably an illegal purpose.

28 David Hayton, Paul Matthews and Charles Mitchell (eds), Underhill and Hayton: Law of Trusts and Trustees (16th edn, LexisNexis Butterworths 2002) 111; see also Graham Moffat et al (n 2) 258.

29 Re Endacott (n 2) 246.

30 See (n 4) 31 See (n 5). See also, Graham Moffat et al (n 2) 258; Harold Ford and WA Lee, Principles of the Law of Trusts (2nd edn, Law Book Company Ltd 1990) 181.

32 Martin (n 2) 386-389.

33 [1980] 1 WLR 360, 375 at [C].

34 See (n 6), 248 at [E].

35 Pettit (n 16) 80.

36 Hudson (n 1).

37 See Moffat et al (n 2) 263; Hayton (n 13) 99-102.

38 [1971] AC 424. The certainty of objects test is linked to but not the same as the beneficiary principle. As Hudson ((n 1) 54) outlines: certainty of objects concerns ensuring ʻthe identity of the beneficiaries are sufficiently certain so that the trustees could know...for which persons the trustees were holding the propertyʼ while the beneficiary principle entails that ʻwithout there being a person expressed as being a beneficiary there cannot be a valid trust at allʼ. See further, Hayton (n 21) 89.

39 Martin (n 2) 397.

40 Hudson (n 1) 220; although see the former attempt to give legal personality to a chimpanzee in other jurisdictions: BBC News (US & Canada) 'NY court asked to give chimpanzee 'legal person' status' (04 December 2013) <http://www.bbc.co.uk/news/world-us-canada-25211859> accessed 15 February 2015.

41 See (n 6), 250 at [C]; Martin (n 2) 388; Hudson (n 1) 210.

42 [1962] Ch 832, 849.

13

33

2015

[1972] Ch 526.

Hudson (n 1) 226-228.

45 ibid 198, 225.

46 ibid 198.

47 Re Denley (n 5).

43 44

34

Exeter Student Law Review

Vol.1/Issue.1

The Difference Between The Acquisition Of Rights And The Quantification Of Shares Of Co-Ownership Interests In Land

THE DIFFERENCE BETWEEN THE ACQUISITION OF RIGHTS AND THE QUANTIFICATION OF SHARES OF CO-OWNERSHIP INTERESTS IN LAND Rachel Morgan, 27/03/2014 This paper reviews the debate over the difference between the acquisition of rights and the quantification of shares in the law of co-ownership interests in land. The paper considers express, constructive and resulting trusts independently, deliberating over how the nature of each has an influence over the application of case law within the courts. The doctrine of proprietary estoppel is discussed in terms of its ability to create flexible solutions and the close link with constructive trusts. The paper goes on to reflect on the decision of the courts to distinguish between commercial interests and those within private familial contexts. The paper concludes that the approach taken in case law is as a result of the need to keep this area of law flexible and able to be applied in different factual circumstances.

Current English law is yet to provide a clarifying set of rules to guide the difference between the acquisition of rights and the quantification of shares despite an abundance of case law providing much critical analysis. As a result a muddled, adhoc approach has been adopted with substantial doctrinal confusion emerging in relation to the method of establishment of rights. This essay will examine the approach taken by the courts through separating the different types of trusts and analysing the confusion within each as well as discussing the reasons for the approaches taken.

Perhaps the clearest trust to define is the express trust. Express trusts emerge where parties intend to create them and they are expected to be evidenced in writing as per Section 53(1)(b).1 This simple and unconfused process was clarified in Savill v Goodall which commented that in most circumstances express trusts can be deemed to be conclusive, a seemingly sweeping statement which has since been clarified as conclusive unless varied by subsequent agreement or affected by proprietary estoppel.2 This is evidenced in Clarke v Meadus in which Mr Justice Warren commented, â&#x20AC;&#x2DC;it cannot...sensibly be argued that once beneficial interests have been declared in a formal document, those interests become immutable and incapable of being affected by a proprietary estoppelâ&#x20AC;&#x2122;.3 This was extended even further in the very recent case of Pankhania v Chandegra,4 in which Lord Justice Patten ruled that express trusts are capable of being set aside for fraud, mistake or undue influence.

The relatively straight-forward approach taken by the courts makes intention and 35

2015

Exeter Student Law Review

Vol.1/Issue.1

express trusts desirable. There is evidence within the judiciary of frustration over the ignoring of the power of express trusts with Lord Justice Ward frustratingly articulating: ‘I ask in despair...to remind conveyers...ascertain what they want and then expressly declare...because this will be conclusive and save argument’. 5 The procedure seems simple; declare the possession and division of beneficial interests in writing and the court process from that point on will be fairly uncomplicated with the parties receiving what was agreed and desired.

Unfortunately, the same simplicity does not apply to constructive trusts. The basis of constructive trusts is fundamentally different to that of an express trust with Section 53(2)6 explicitly stating so. Gardener argues that by definition constructive trusts ‘arise for reasons other than intended to’ and the term constructive means rights arising on a disorganized basis.7 The case law in relation to constructive trusts is the most muddled area with a few central cases taking charge, despite this, there still seems to be a lacking of a strong set of guiding principles. The two leading cases providing guidance on the difference between acquisition and quantification, Oxley v Hiscock and Stack v Dowden,8 fuel the issues with clarity in the fact that the two cases do not align their emerging principles.

Rosset, along with Gissing,9 take the lead in terms of defining what should be considered a beneficial interest - in other words, which party should acquire the rights. In Rosset, Lord Bridge dismisses the facts of the case quickly and focuses on producing his two guiding models, the first of express agreement and the second of common intention.

Oxley retains this establishment of gaining a beneficial interest adding a few additional conditions such as fairness not contributing to gaining a beneficial interest, as well as indirect contributions only creating a beneficial interest if based on an agreement. At this point in the analysis the approach of the court seems logical and to build upon past decisions. It is in the quantifying of shares that Oxley makes the most headway. Two further classes emerge, the first that express evidence as to the percentage should be adhered to and then secondly ‘that each is entitled to that share which the court considers fair having regard to the whole course of dealing’.10 Unfortunately rather than apply the principles and tests created in Oxley, Stack went on to be governed by a slightly different set of rules. Here began the muddling of the previous clarity, as discussed by Lister and West, that this ‘indicates the judges’ divergent views on what this... approach entails and, in particular, on the nature of the requisite intention’.11 36

The Difference Between The Acquisition Of Rights And The Quantification Of Shares Of Co-Ownership Interests In Land

In Stack, a prima facie case in which a 50:50 split emerges was established if acquisition of legal title was in a joint name. The judges decided that if a property is conveyed in a joint name it is expected that the beneficial interest is intended to be shared. Baroness Hale commented that the burden is then placed on the parties to disprove this if this was not the intention confirming the maxim that equity follows the law and is a significant move away from the concept of fairness focused on in Oxley.

Baroness Hale also focused on the importance that it is necessary to examine intention in terms of ‘actual, inferred or imputed with respect to the property in the light of the whole course of conduct in relation to it’:12 a different approach to the common intention set out in Oxley. Furthering these two slightly confused approaches, in Jones v Kernott, the four court of appeal judges passed four conflicting judgments when they were given ample opportunity to face the divergent issues and give a more structured response.13 Lister and West confirm this idea and also suggest that there is need for increased clarification in statutory provision as well as case law. They do acknowledge however the importance for the law in this area to be adaptable and be capable of flexibility with different sets of facts.14 This brings about an interesting question: if courts have been given ample opportunity to create a clarifying set of principles which solidifies the distinction, and yet have not taken this opportunity, does this mean that they would rather not and simply think that one of the virtues of the law in this area is that there is flexibility in the approach?

Similarly, resulting trusts have gone no further in providing a more clear and applicable distinction. As per constructive trusts, they do not arise as a result of intention and cannot be neatly established under the LPA.15 It is first worth considering the idea that resulting trusts have been deemed to be of unenlightened origin with Lord Diplock suggesting that they have little place within modern society.16 As stated by Carpenter ‘the modern law is lacking, due to fundamentally outdated legal precedence’.17 Most accurately described by Mr Justice Woodhouse as allowing the ‘solid tug of money’, the share of the beneficial interest in this trust arises from the contribution made to the financial investment at purchase.18 In line with the outdated nature of the trust, this follows the doctrine of equity that one should be entitled to a beneficial interest if they have provided the funds.

The principle confusion in relation to resulting trusts between acquisition and quantification arises as a direct result of nature of the trust. A resulting trust comes into existence once someone has contributed to the purchase of land: the acquisition. Difficulty then arises when attempting to alter this proportion. Many other factors may have been contributed, such as property development or 37

2015

Exeter Student Law Review

Vol.1/Issue.1

mortgage repayments however, traditionally, these will not have an effect on altering the quantification. Cowcher v Cowcher confirmed this principle and did not allow Mrs Cowcher to retrieve a higher percentage than that of her original acquisition contribution even though she had paid a significant proportion to the mortgage.19 Springette v Defoe reinforced this with the establishing that unless a discussion has taken place to alter the share percentage, the contribution stands.20 Although there is this old-fashioned, originally designed approach, the extremely flexible attitude has been employed to some cases with the courts appearing to bend the rules in the name of what seems fair and equitable in our modern world.

Midland Bank v Cooke shows the way the courts have ignored the rigid nature of the relationship between acquisition and quantification.21 Although the wife contributed a minor percentage, she was given 50% with Lord Justice Waite suggesting that even though the couple had discussed and agreed on differing the percentage from the acquisition percentage, the court should not be stopped â&#x20AC;&#x2DC;on general equitable principles, from inferring oneâ&#x20AC;&#x2122;.22 These sorts of differences show the lack of clarity and certainty in judicial approaches and suggest that the courts possess a significant amount of leeway and discretion - even within an area that seems superficial, which could be neat and unblemished.

Laskar v Laskar is valuable in not only providing evidence of the original principle that the original contribution stands, but also in displaying the difference the court places on the purpose of the issue whether private or commercial.23 Although the courts have not expressly stated that there is a difference, it becomes obvious in the case law that there are slightly altered approaches. This only seems logical, as the functioning of a private co-habiting couple is substantially different to that of revenue based commercial business.

Laskar highlighted that on the surface the relationship seems private as the parties were related, however, a distinction was made in the judgment, as the purpose of the purchase of the property was not for private use. Rather, as an investment property with the purpose of producing capital. Lord Neuberger confirmed this by stating, that had the property been purchased as a home, he would have found substantially differently.24 The need for discrepancy was further confirmed in the House of Lords case, Thorner v Majors.25 This case showed that because the relationship was personal and the promises were made in a context reflective of this, the nephew was entitled to a share in the property. The case has done much to confirm that promises made within a family context are promises nonetheless, despite the lack of contractual language or much commercial experience. It is worth considering

38

The Difference Between The Acquisition Of Rights And The Quantification Of Shares Of Co-Ownership Interests In Land

the fact that the House of Lords overruled the Court of Appeal on this matter. The Court of Appeal expressed an apprehension that, by allowing promises made within a private context to hold true, floodgates would be opened and the courts would be drowned in an abundance of these types of claims. Lord Walker, however commented, ‘judges realise the need to subject the evidence…to careful, and sometimes skeptical, scrutiny’,26 which supports two arguments – firstly, that there needs to be court discretion when private disputes and families are concerned, and secondly, that the courts acknowledge this and are well equipped to do so.

This type of acknowledgment of the importance of relationship was further recognised in Adekunle & Ors v Ritchie27 in which the judges were able to appropriate established principles in order to ensure a fair outcome was obtained in circumstances of familial relationship and unusual circumstances.

The final concept, which fuels the confusion, is that of proprietary estoppel. Lord Justice Chadwick suggests ‘there is no difference in outcome...whether the true analysis lies in constructive trust or in proprietary estoppel’.28 When applying the doctrines, there are some slight differences. In terms of establishing an interest in the land, proprietary estoppel becomes evocable when the party tries to assert their right and therefore allows for more advantageous circumstances and flexibility. This is furthered when the shares become quantified. The courts are more able to use their discretion when providing judgment. The confusion arises from the facts that since constructive trusts and proprietary estoppel are so closely linked, yet have some fundamentally different applications, it makes it very difficult for all concerned to select and evoke the correct approach.

In conclusion, the difference between acquisition and quantification depends upon divergent reasoning guiding decisions. As expressed by Baroness Hale, each case should be analyzed independently based on the facts.29 Although it is possible in the future for a more clearly defined approach to be taken, this does not seem to be the desire of the court and judicial opinion is centered on a flexible approach.

Law of Property Act 1925, s53(1)(b).

Savill v Goodall [1993] 1 FLR 555 (CA); Pettitt v Pettitt [1970] AC 777 (HL); Goodman v Gallant [1986] 1 All ER 311.

3 [2010] EWHC 3117 (Ch); ibid [56] (Warren J).

4 [2012] EWCA Civ 1438.

5 Carlton v Goodman [2002] EWCA Civ 545 [44] (Ward LJ).

6 Law of Property Act 1925, s53(2).

7 Simon Gardener and Emily MacKenzie, An Introduction to Land Law (3rd edn, Hart Publishing 2012) 156; ibid,156-157.

8 [2004] EWCA Civ 546; [2007] 2 AC 432 (HL).

1 2

39

2015

Exeter Student Law Review

Vol.1/Issue.1

Lloyds Bank v Rosset [1971] 1 AC 107; Gissing v Gissing [1971] AC 886.

Oxley (n 8) [69] (Chadwick LJ).

11 Lyndsey West and James Lister, ‘No clarity for cohabitants’ (Trusts and Estates Law & Tax Journal, 20th April 2012) <http://lawjournals.co.uk/2012042072008/trusts-estates-law-tax-journal/trustsand-the-family-home-no-clarity-for-cohabitants#.VPCxCb4jhSW > accessed 29 April 2014.

12 Stack v Dowden (n 8) [60] (Baroness Hale).

13 [2010] EWCA 578; West and Lister, ‘No clarity for cohabitants’ (n 11).

14 ibid.

15 Law of Property Act 1925.

16 Pettitt (n 2).

17 Olivia Carpenter,‘Illegality, Resulting Trusts And Twin Presumptions: Antiquated Law Meets Modern Society’ (Cork Online Law Review, March 2013) <http://corkonlinelawreview.com/editions/2013/OliviaCarpenter.pdf > accessed 24 March 2014.

18 Hofman v Hofman [1965] NZLR 795 [800] (Woodhouse J); Pettitt (n 2).

19 [1972] 1 WLR 425.

20 [1992] 2 FCR 561.

21 [1995] 4 All ER 562 (CA).

22 ibid, 575 (Waite LJ).

23 [2008] EWCA Civ 347.

24 ibid [17] (Lord Neuberger).

25 [2009] UKHL 18.

26 ibid [60] (Lord Walker).

27 [2007] EW Misc 5 (EWCC).

28 Oxley (n 8) [66] (Chadwick LJ).

29 Stack (n 8).

9

10

40

The Need For Reform Of The United Nations’ Human Rights Treaty System

THE NEED FOR REFORM OF THE UNITED NATIONS’ HUMAN RIGHTS TREATY SYSTEM Miriam Newman-Tancredi, 15/01/2015 This paper will critically assess the view that the United Nations human rights treaty system is in need of reform. It is a largely discussed topic, and has been since the end of the twentieth century, as the system has constantly grown without real coordination. In the first part, this paper will seek to establish the current state of the system by examining its successes and shortcomings, notably in relation to the attitudes states bring to the process, arguing that the system has the potential to be effective despite the difficulties it faces. The reforms of 2014 and their first impact on certain treaty bodies illustrate the measures already being taken to improve their functioning and maximise their working time. Secondly, this paper will argue that some views on what reforms are necessary, such as full time treaty bodies or a world court of human rights, are not practical. It will nonetheless be put forward that reforms increasing the clarity and tangibility of concluding observations and followup procedures are required. This being said, the paper will emphasise that the issue of enforcement goes beyond the difficulties faced by the human rights treaty system.

The cooperation of participating states is essential, and other actors such as National Human Rights Institutions and national non-governmental organisations have a vital role in making the treaty bodies’ work visible and increasing the pressure put on states to implement concluding observations. A UN reform can only go so far and the process will always remain a two-way street.

INTRODUCTION Since the Second World War, the United Nations has developed ten core international human rights instruments aimed at protecting different categories of rights, the first being the International Convention on the Elimination of All Forms of Racial Discrimination, which was adopted in 1965, and the most recent being the International Convention for the Protection of All Persons from Enforced Disappearances (ICCPED), adopted in 2006. As well as these, there are another seven human rights treaties and the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). Each has a treaty body that, through its work, is the main supervisor of the rights enshrined in the relevant instrument.

The system as a whole has, however, often been criticised and prompted frequent discussion surrounding the necessity for reform. Issues such as the lack of ability to implement concluding observations, the lack of enforcement powers and the

41

2015

Exeter Student Law Review

Vol.1/Issue.1

limited time allocated to the treaty bodies to review state reports, leading to considerable backlogs, have contributed to the claims that the system lacks effectiveness.

This paper will firstly examine the current state of the system, looking at its successes and shortcomings to briefly establish where it currently stands. It will then review the reform process initiated by Navi Pillay in 2009 and the implementation of it. Secondly, it will examine the need for (further) reform of this system in terms of maximising the effectiveness of the process, focussing especially on concluding observations and the follow-up procedures. It shall then conclude that any issue with enforcement is, however, dependent on more than a reform of the UN human rights treaty system. Other actors, representatives of civil society such as National Human Rights Institutions (NHRIs), national NGOs, journalists and domestic courts play a vital role in ensuring the visibility of the treaty bodies’ views and increasing the state’s accountability to its people for an effective functioning of the system.

I. CURRENT STATE OF THE SYSTEM A. SUCCESSES & SHORTCOMINGS The success of the UN human rights treaty system as a whole can, to a certain extent, be measured by the number of signatures and ratifications of the various human rights instruments. Besides the ICCPED, which has the fewest state parties (only 44), the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families and OPCAT, with 47 and 76 respectively, the other 7 conventions all have a number of ratifications ranging between 151 (Convention on the Rights of Persons with Disabilities) and 194 (Convention on the Rights of the Child (CRC)). This represents a global support of these human rights instruments, with progress still to be made in certain areas.

This approach, however, only scratches the surface as in practice the situation can be very different. The role of treaty bodies is essential as they represent the only monitoring that takes place of the rights enshrined in each convention through reporting obligations imposed on state parties. One of the aims for this reporting system is to enable dialogue between the UN and state parties, as can be seen for example in the CRC which specifies that the measures in Article 45 exist ‘to foster effective implementation of the Convention and to encourage international cooperation in the field covered by the Convention.’1 Unfortunately, the reporting system does not always live up to its intended outcomes. Steiner comments that states sometimes ‘stress their exemplary, if illusory law on the statute books to the exclusion of the abuse and rampant illegality described in the reports of

42

The Need For Reform Of The United Nations’ Human Rights Treaty System

international nongovernmental organisations and NGOs.’2 This may sometimes be the case but it does not render the whole system ineffective. Committee members can be persistent in their questioning and, in their diplomatic language, make clear that they are not fooled by the lack of concrete information provided by the report.

The concluding observations issued by the Committee on Economic, Social and Cultural Rights (CESCR) following the review of Nepal’s third periodic report are one example. In relation to Article 2 of the International Covenant on Economic, Social and Cultural Rights, they stated that ‘[t]he Committee regrets that the State party has not provided sufficient disaggregated and detailed data to enable it to better evaluate the implementation of the rights provided for in the Covenant (art.2).’3 These concerns regarding the lack of information provided are repeated throughout the Committee’s observations.4 This could be partly due to the unwillingness of the Nepalese government to expose the situation on the ground, as Steiner has commented. Bayefsky was more critical of the system itself, saying that: ‘[T]he concluding observations meet the conditions of accuracy and functionality to widely varying degrees. The quality has been impeded by a number of factors, in particular: barriers to the submission of information, lack of human resources to sift and analyse information, impediments to an effective dialogue and the lack of independence or expertise of significant numbers of treaty body members.’5 Philip Alston, tasked in the nineties to produce an independent expert’s report on the reform of the treaty bodies, took a similar approach and ‘highlighted stumbling blocks for states in fulfilling their obligations unrelated to questions of political will such as capacity deficits and what he termed 'mundane bureaucratic reasons', such as a failure to understand what was really required or the assumption that what was being asked was beyond a small ministry's capacity.’67 Though this may be the case, as undeniably this contributes to the problem, treaty bodies encounter a wide range of attitudes from states when reviewing their reports and consequently the problem cannot solely be attributed to the clarity or capacity issues that Bayefsky and Alston refer to. For example, Zdzislaw Kedzia, Chairperson of the CESCR, observed that the consideration of Slovenia’s second periodic report on 18 and 19 November 2014 had been productive and that he ‘had been impressed by the quality of responses and information provided by the delegation, as well as its cooperative and constructive spirit.’8 Hence, the system can work and has the potential to be effective, despite the difficulties it faces.

B. REFORM OF 2012/2014

43

2015

Exeter Student Law Review

Vol.1/Issue.1

It seems that since the nineties the UN has been in a constant search to improve the system. In his 2002 report ‘Strengthening of the United Nations: an agenda for further change’, Kofi Annan comments that ‘the reforms begun in 1997 were aimed at adapting the internal structures and culture of the United Nations to new expectations and new challenges.’9 Annan’s summary of some of the challenges faced by treaty bodies are still visible today. In his words: ‘The existing treaty bodies and human rights mechanisms and procedures constitute a large and intricate network. The growing complexity of the human rights machinery and the corresponding burden of reporting obligations strain the resources of Member States and the Secretariat. As a result, the benefits of the current system are not always clear.’10 More recently, Egan commented that the challenges that treaty-based bodies face are linked to the fact that they were not designed to function as a whole system, and consequently have been evolving informally and gradually over time,11 contributing to the ‘longstanding pressure for reform’.12 In 2009 Navi Pillay, the then High Commissioner for Human Rights, issued a call for reflection on the strengthening of the UN treaty body system and measures which could be taken to improve and streamline its functioning. This initiated the Dublin Process, a series of meetings and consultations involving all stakeholders: states, treaty bodies, UN entities, NHRIs, NGOs and academics. The Process produced a series of documents such as the Dublin, Marrakesh and Poznan Statements, put together by treaty body experts, NHRIs and treaty body members respectively, and culminated in the High Commissioner’s report of 2012.13 Pillay highlighted the vision for the future of the treaty body system: ‘An effective and sustainable treaty body system contributing to a national debate and international dialogue through predictable, periodic, non-politicized, nondiscriminatory and expert-led independent review of the implementation of legally binding treaty obligations by States, harmonized with other human rights mechanisms, namely, the Special Procedures and the Universal Periodic Review, and enhancing the protection of human rights for all.’14 Additionally, she listed proposed reforms resulting from the Dublin Process and endorsed many of them, such as the ‘Simplified Reporting Procedure’ (SRP) which came out of a desire to improve the quality of states’ reporting obligations by increasing the assistance at their disposal.15 These reforms were offset, however, by an intergovernmental process launched by the Russian Federation and involving a number of states. It lasted two years and its aim was to further increase the inclusion of UN member states in the process. At the end of this, in April 2014,

44

The Need For Reform Of The United Nations’ Human Rights Treaty System

the General Assembly adopted Resolution 68/268 entitled ‘Strengthening and enhancing the effective functioning of the human rights treaty body system’.16 This Resolution implements some of these changes put forward by Pillay, namely an extra 20 weeks per year of meeting time allocated to treaty bodies, increased technical assistance from the UN Human Rights Office, more videoconferencing to facilitate participation in meetings, the introduction of limits on the length of documents as well as the number of translations made of the reports (now 3 rather than 6).17 We have yet to observe the full effectiveness of these measures, but it does seem that they will aid treaty bodies in reducing the backlogs they are currently working with. The Committee on the Rights of the Child opened its sixtyeighth session on 12 January 2015 with a statement from Ibrahim Salama, the Director of the Human Rights Treaties Division of the Office of the High Commissioner for Human Rights and representative of the United Nations Secretary-General, saying that ‘the focus of the Office would be on assisting each Committee to reduce backlogs and reach the targets set out in the General Assembly resolution 68/268 on treaty body strengthening.’18 The Committee have taken measures to do this through a different working method which will enable them to carry out double the amount of work: ‘Kirsten Sandberg, Committee Chairperson, said that 12 countries and 20 State reports would be reviewed during this session by the Committee meeting in double chambers.’19 All treaty bodies taking similar measures to implement Resolution 68/268 will make a significant difference in terms of backlogs and assistance received by reporting states to fulfil their obligations to the best of their abilities.

II. NEED FOR REFORM? A. REFORMS TO INCREASE THE EFFECTIVE USE OF THE COMMITTEES’ WORKING TIME As already mentioned in the previous section, a number of factors limit the quality and quantity of work the treaty bodies are able to carry out. In terms of the time allocated to each Committee to meet, Hampson advocates a much more demanding schedule to maximise the work done by the treaty bodies.

‘In my view, in order to ensure adequate scrutiny of the implementation by States of their commitments, the Human Rights Committee and the Committee on Economic, Social and Cultural Rights should be full-time bodies. The other treaty monitoring bodies should remain part-time, but allocated the resources to allow them to meet for more than the current number of weeks.’20 It is difficult to see how this would work, practically. The experts who give their time as members of treaty bodies do so on a voluntary basis and financial 45

2015

Exeter Student Law Review

Vol.1/Issue.1

restraints exist, rendering their work ‘dependent on the goodwill of Committee members and of Member States for continuation.’21 For the large part, members have another full-time occupation. Many are university lecturers or serve the government in their home country in some capacity, so finding the suitable people to serve on a full-time basis would surely not be an easy feat.

In terms of problems with concluding observations, Hodson comments that ‘[p]oor compliance by states with reporting obligations is notorious under all international human rights treaties’.22 This inevitably affects the quality of concluding observations, and despite the treaty bodies having the scope to use them to put across their suggestions for improvement, as seen above, O’Flaherty comments that ‘considerable scope remains for the enhancement of concluding observations and follow-up procedures’.23 This comment gets to the core of the problems that hinder the UN treaty system from having better effectiveness: both optimising the use of the concluding observations and subsequently enforcing them. Because of often-vague recommendations, ‘NGOs have endorsed the recently released UNHCHR Report urging treaty bodies to formulate 'targeted, specific, measurable, achievable and time-bound' recommendations.’24 Gerber, in her article focussing on LGBT rights and the Human Rights Committee (HRC), suggests changes to the concluding observations to optimise them. She says that ‘[t]he provision of more tailored, concrete and measurable concluding observations would also enable the Committee to more comprehensively and actively monitor the goals set, and recommendations made.’25 As it stands, the Committee Against Torture, the Committee on the Elimination of Racial Discrimination, the HRC, the Committee on Enforced Disappearances and the Committee on the Elimination of Discrimination Against Women (CEDAW) have formal, written follow-up procedures by which States must report back within one year (two in the case of CEDAW) on rapidly implementable specific recommendations or ‘priority concerns’.26 A rapporteur or coordinator oversees this process to facilitate dialogue between the relevant treaty body and the state concerned and to monitor compliance with the concluding observations. These follow-up procedures demonstrate the efforts made by the UN treaty system to ensure their recommendations are not forgotten after the consideration of the report in Geneva.

However, despite this the problem remains and as Nowak says, ‘[f]inal views on communications are nice, but legally binding judgments on complaints are simply better: The HRC and other treaty bodies have done what they could to develop well-argued quasi-judicial decisions, but without being legally binding they are often ignored in practice.”27

46

The Need For Reform Of The United Nations’ Human Rights Treaty System

It can be argued that enforcement is not the mandate of human rights treaty bodies; as Hodson comments, ‘the reporting procedure […] is generally accepted as a means of reviewing national implementation rather than an enforcement mechanism’.28 Reporting and concluding observations should nevertheless be enhanced as much as possible. However, the Committee on the Rights of Persons with Disabilities, in observations on Tunisia, Spain, Peru, Argentina, China and Hungary; expressed concern ‘that no measures have been undertaken to replace substitute decision-making by supported decision-making in the exercise of legal capacity’.29 […] This approach demonstrates the Committee's acceptance of the need for a support model of legal capacity to be implemented in States Parties to the Convention; however, as yet, little guidance has been given on what steps would constitute progress towards this support model approach.’30 Concluding observations play a key role in the human rights treaty system. As seen through academic commentary, there is a real need to optimise them to maximise the clarity and subsequent implementation of them. However this nonimplementable nature of recommendations itself is, in large part, due to the rushed nature of the dialogue between Committee and country. In terms of the further need for reform, this leads to the conclusion that more meeting time is essential, and that there is a need to focus on facilitating the follow-up procedures and increasing the specificity of concluding observations, since the results they produce on the ground is what the effectiveness of the system hinges on.

B. ENFORCEMENT DEPENDENT ON MORE THAN A UN REFORM As Nowak puts forward, there is an argument for a legally binding system to enforce international human rights.31 There are, however, many reasons why this would not work in the international sphere, such as the fact that states are not likely to easily hand over sovereignty to an international body. Mbondenyi observes that ‘[a]rguably, whereas the universal system of human rights established under the UN played a vital role in the enforcement of international human rights law immediately after the Second World War, its wide geographic jurisdiction undermined its efficacy.’32 Regional courts such as the African Court on Human and Peoples’ Rights have succeeded in being established, but even they encounter problems of conflict of powers as currently illustrated in the United Kingdom’s response to the European Court of Human Rights. Consequently, imposing another global court would not come without resistance from UN member states. The system does derive strength from its quasi-judicial status; the UN treaty system aims to promote dialogue and 47

2015

Exeter Student Law Review

Vol.1/Issue.1

is not politicised. ‘The monitoring of implementation is very much the function of the treaty bodies, since it is a technical function which should be performed by independent experts and not by a political body.’33 Rehman comments that ‘[n]evertheless, […] interpreting a legally binging instrument [the International Covenant on Civil and Political Rights], the HRC’s views are issued ‘in a judicial spirit’ which has influenced States to change their legislative and administrative practices.’34 The issue with a quasi-judicial system is that its functioning is not solely self-dependent. Merrill lists various elements which are needed for an effective system to work and at the heart of these come cooperation from states and treaty bodies.35 Uncooperative states halt the possibility of properly carrying out the work that treaty bodies set out to do. Many states submit reports with years of delay, such as Romania, which submitted its combined third to fifth reports to the CESCR in April 2011 after twenty years of absence. The issue of enforcement goes beyond the difficulties faced by the human rights treaty system.

In response to this, Hampson suggests political influences from other states: ‘[t]he problem would not be solved by giving [treaty bodies and other mechanisms] more resources. What is needed is something rather different. States need to be subjected to political pressure by their peers.’ 36 This may produce more results, as would economic sanctions, for example, the restriction of some trade to a particular country; however, the implementation of such a method would not come without controversy. Additionally, regardless of whether the state is cooperative at the international level, the problem is sometimes due to the poor visibility of the work of treaty bodies: people are unaware of their work. Accordingly, without the participation of civil society, implementation is poor. The HRC commented that: ‘[M]any people with the most need to know about the Covenant and the Committee do not have easy access to the internet. There is an evident need to promote that knowledge at the grass roots level. Direct dissemination among members of national parliaments and universities might also be employed. NGOs, and especially national NGOs, active in the field of human rights are the most obvious means by which, at a level and in a manner suited to the particular country, that knowledge may be disseminated among the general population.’37 Kälin also suggests increasing the participation of certain non-state actors, which have the potential to improve the follow-up procedure. He says that ‘trying to better combine the work of the treaty bodies with UN country presences possesses a huge potential for improving the effectiveness of the state reporting procedures.’38 He also mentions the importance of the role of journalists in making the work of treaty bodies more widely accessible, though the media may not have this much freedom in all countries and few specialise in human rights issues.39 Van

48

The Need For Reform Of The United Nations’ Human Rights Treaty System

Alebeek and Nollkaemper highlight the role of domestic courts in the implementation of treaty bodies’ concluding observations: ‘[i]f the estimate of the HRC is not too far off, roughly 70 per cent of Views are not implemented. […] When the legal effect of Views is not regulated in national legislation, it is up to the national courts to ascertain their legal status in the national legal order’. 40 In the absence of a legally binding judgment, the combined work of these representatives of civil society can help to improve the implementation of concluding observations on the ground through the accountability created by making them more visible to the people of the country concerned.

CONCLUSION This paper has, firstly, sought to establish the current state of the system through a very brief overview. Unsurprisingly, it possesses both strengths and weaknesses.

The number of signatures and ratifications is generally high for the ten human rights instruments and the system is an effective forum for discussion with willing states. The attitudes from states to the review process range from cooperative to reluctant and hostile, without even mentioning those who are years behind on their reporting obligations. This hinders the effectiveness of the system, however, it does not prevent it from working, as can be seen when a state is cooperative.

This paper then turned to the reforms implemented in April 2014 through the General Assembly Resolution 68/268 and observed that though recent, the changes already being put in place by certain treaty bodies have the potential to improve the functioning of the system.

The second part of this paper sought to attain a conclusion on whether further reform is necessary. The focus taken here was on concluding observations and the follow-up procedures, which are lacking in clarity and tangibility. This is partly due to the rushed review of state reports, done over six hours, and consequently reforms to tackle both problems are necessary. Although some advocate a legally binding system, it is argued that though this would be easier in terms of enforcement, it is not something that would readily be accepted by UN member states and was not what the system set out to do in the first place. Consequently, this essay finishes by concluding that a UN treaty body reform can only go so far, because at the heart of an effective system is the cooperation of participating states. Therefore, the other actors able to influence how the system works such as journalists where possible, NHRIs, national NGOs and domestic courts have an essential role in making the treaty bodies’ views visible to their country’s population and thereby increase the pressure to implement the concluding observations.

49

2015

Exeter Student Law Review

Vol.1/Issue.1

Undoubtedly the UN human rights treaty system will constantly be in search of ways to improve its functioning, after all, the term ‘reform’ has been on the lips of UN representatives themselves since the end of the twentieth century. Indeed, as this paper has established, room for improvement remains in a number of areas.

However it will always remain a two-way process by which cooperation from member states is necessary and essential to the proper functioning of the system: a UN reform cannot force that.

Convention on the Rights of the Child, art 45.

H Steiner, 'Individual Claims in a World of Massive Violations', in P Alston and J Crawford (eds), The Future of UN Human Rights Treaty Monitoring (Cambridge University Press 2000) 50.

3 Committee on Economic, Social and Cultural Rights, ‘Concluding Observations on the Third Periodic Report of Nepal’, 12 December 2014, UN Doc E/C.12/NPL/CO/3, para 6.

4 ibid, paras 7, 20 and 22.

5 A Bayefsky, The United Nations Human Rights Treaty System, Universality at the Crossroads (Transnational 2001) 66.

1 2

A Devereux and C Anderson, ‘Reporting under International Human Rights Treaties: Perspectives from Timor Leste's Experience of the Reformed Process’ (2008) 8 Human Rights Law Review 69, 76.

8 ‘Committee on Economic, Social and Cultural Rights concludes consideration of report of Slovenia’ (United Nations Human Rights, 19 November 2014) <http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=15314&LangID=E> accessed 29 December 2014.

9 United Nations General Assembly, 57 rd Session, ‘Strengthening of the United Nations: an agenda for further change, Report of the Secretary-General’, UN Doc A/57/387, 1.

10 ibid, 2.

11 S Egan, ‘Strengthening the United Nations Human Rights Treaty Body System’ (2013) 13 Human Rights Law Review 209, 210-211.

12 ibid.

13 ‘Treaty Body Reform: The Dublin Process’ (International Service for Human Rights, 11 April 2013) <http://www.ishr.ch/news/treaty-body-reform-dublin-process> accessed 31 December 2014.

14 N Pillay, ‘Strengthening the United Nations human rights treaty body system: A report by the United Nations High Commissionner for Human Rights’ (2012) United Nations Office of the High Commissioner for Human Rights, 12 <http://www2.ohchr.org/english/bodies/HRTD/docs/HCReportTBStrengthening.pdf> accessed 11 March 2015.

15 ibid, 47.

16 UN General Assembly, 68th Session, ‘Resolution adopted by the General Assembly on 9 April 2014: 68/268. Strengthening and enhancing the effective functioning of the human rights treaty body system’ UN Doc A/RES/68/268.

17 ibid.

18 ‘Committee on the Rights of the Child opens sixty-eighth session’ (United Nations Human Rights, 12 January 2015) 7

50

The Need For Reform Of The United Nations’ Human Rights Treaty System

<http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15472&LangID=E> accessed 12 January 2015.

19 ibid.

20 F Hampson, ‘An Overview of the Reform of the UN Human Rights Machinery’ (2007) 7 Human Rights Law Review 7, 12.

21 Rhona K M Smith, International Human Rights (6th edn, Oxford University Press 2014) 82.

22 L Hodson, ‘Women’s Rights and the Periphery: CEDAW’s Optional Protocol’ (2014) 25 European Journal of International Law 561, 563.

23 M O'Flaherty, ‘The Concluding Observations of United Nations Human Rights Treaty Bodies’ (2006) 6 Human Rights Law Review 27, 51.

24 Amnesty International, Pretoria Statement on the Strengthening and Reform of the UN Human Rights Treaty Body System, 20–21 June 2011, IOR 40/012/2011, para 9.1, quoted in P Gerber, ‘The UN Human Rights Committee and LGBT Rights: What is it Doing? What Could it be Doing?’ (2014) 14 Human Rights Law Review 403, 417.

25 ibid, 435.

26 ‘A Practical Guide for Civil Society: How to Follow Up on United Nations Human Rights Recommendations’, (United Nations Human Rights, 2013) 33 <http://www.ohchr.org/Documents/AboutUs/CivilSociety/HowtoFollowUNHRRecommendations. pdf> accessed 13 January 2015.

27 M Nowak, ‘It’s Time for a World Court of Human Rights’ in M Cherif Bassiouni and W A Schabas (eds), The New Challenges for UN Human Rights Machinery (Intersentia 2011) 26.

28 Hodson (n 21).

29 UN Convention on the Rights of People with Disabilities, 5 th Session, ‘Consideration of Reports Submitted by States Parties under Article 35 of the Convention: Concluding Observations of the Committee on the Rights of Persons with Disabilities’, UN Doc CRPD/C/TUN/CO/1, para 22.

30 E Flynn and A Arstein-Kerslake, ‘Legislating personhood: realising the right to support in exercising legal capacity’ (2014) 10 International Journal of Law in Context 81, 91.

31 M Nowak, ‘On the Creation of a World Court of Human Rights’ (2012) 7 NTU Law Review 257.

32 M Mbondenyi, International Human Rights and Their Enforcement in Africa (LawAfrica 2011) 3.

33 Hampson (n 19) 11.

34 J Rehman, International Human Rights Law (Longman 2010) 139.

35 J Merrills, Human Rights in the World (Manchester University Press 1996) 41-51.

36 Hampson (n 19) 11.

37 HRC, ‘A Strategic Approach to Public Relations including Relations with the Media’, 23 October 2008, UN DOC. CCPR/C/94/CRP.2/Rev.1, para 8.

38 W Kälin, ‘Examination of State Reports’ in H Keller and G Ulfstein (eds), UN Human Rights Treaty Bodies: Law and Legitimacy (Cambridge University Press 2012) 68.

39 ibid, 70.

40 R Van Alebeek and A Nollkaemper, ‘The Legal Status of Decisions by Human Rights Treaty Bodies in National Law’ in H Keller and G Ulfstein (eds), UN Human Rights Treaty Bodies: Law and Legitimacy (Cambridge University Press 2012) 362.

51

2015

Exeter Student Law Review

Vol.1/Issue.1

THE REGULATION OF SEXUAL AUTONOMY Chloe Turner Bloom, 16/01/2015 This paper examines the law’s regulation of sexual autonomy through its effect on BDSM and extreme pornography. In particular, it argues the law unjustly restricts sexual autonomy. The heteronormative bias of the law, in addition to a misconstrued and misunderstood approach to moral and physical harm in the realm of sexuality, together illustrate the failure of the law to adequately address sexual autonomy. This paper presents an analysis of the newly enacted Audiovisual Media Services Regulation 2014 alongside case law - most importantly R v Brown and R v Wilson research and other relevant legislation, all highlighting the law’s inconsistent approach to sexual autonomy. This paper concludes by suggesting that sexual autonomy can be fully expressed if the law understands BDSM and extreme pornography in their contexts as opposed to reducing them to repulsive abnormalities. Essentially, what is needed is a reassessment of the present approach stripped of its prejudices.

The law takes a universal neutral starting point; however it enforces heteronormativity and a restricted set of moral values where sexuality is concerned. An analysis of harm, consent and contextual understanding are important in exploring the law’s constraints on sexual autonomy. These limits are inconsistent, unjustified and only allow for a heteronormative embodiment of sexuality. The body is where the law asserts itself;1 accordingly, what we do with our bodies and how we express our sexual identities is within the control of the law. The negative consequences are exemplified through an examination of Bondage and Discipline, Domination and Submission, Sadism and Masochism (BDSM) and extreme pornography in tension with the law, and ultimately how sexual autonomy is restricted.

Understanding sexual autonomy helps critique the objective normative standpoint of the law due to the diversity of sexual and bodily experiences. Embodiment can challenge the law through the vast majority of ways bodies are perceived.2 With regards to extreme pornography, the newly enacted Audiovisual Media Services Regulations 2014 (AMSR)3 places arbitrarily strict limits on pornography made, or provided through video-on-demand services, in the UK. For example, consuming male ejaculate is permissible; however consuming female ejaculate or urine is not.4 This is blatantly sexist and seems to purely exist to repress female sexuality and enforce embodying heteronormativity.5 Moreover, the AMSR 2014 goes on to ban face sitting, fisting and inserting objects into an adult’s body,6 all of which may be key in non-heteronormative sexualities. The AMSR 2014 indiscriminately prohibits 52

The Regulation Of Sexual Autonomy

certain activities and it is a prime example of the law overreaching and imposing unjustified restrictions to force heteronormativity. Ultimately, removing the option of being able to watch someone consume female or male ejaculate, and only allowing them to watch the consumption of male ejaculate, says that there is something so wrong about the former and that it must be legislated against. The limits imposed by the AMSR 2014 only permit a very narrow heteronormative view of sexuality, by restricting sexual autonomy.

The means through which the law restricts those who engage in BDSM also reflects a forced heteronormative approach to sexuality. A comparison of the cases of Brown7 and Wilson8 illustrates the favouring of heteronormative sexuality and inconsistencies in the law. Both cases involve the infliction of physical pain during the course of activities of a sexual nature, however in Wilson it occurs within the confines of a heterosexual relationship and therefore the law finds it acceptable.

On the other hand, Brown involves homosexual group sex, and occurs outside of marriage. As Lord Templeman states, sadomasochism ‘glor[ifies] cruelty,’9 however, ‘consensual activity between husband and wife…is not…a proper matter for criminal investigation, let alone prosecution.’10 The law’s legal person does not enjoy a rough spanking, unless it occurs within a heterosexual committed relationship.11 A comparison of the analogous facts and opposing outcomes in Wilson and Brown shows inconsistency by the judges and a clear preference for embodying heteronormative sexuality. To further exemplify the law’s bias, a more recent case involved a heterosexual relationship in which the man was found not guilty of assault occasioning actual bodily harm (ABH)12 from practising BDSM.13 The law asserts itself over our bodily choices by only allowing for heteronormative practices, consequently limiting sexual variety and autonomy.

Pornography legislation and BDSM cases illustrate how the law restricts sexual autonomy by directly and indirectly criminalising sexual activities and interests that fall outside of the narrow realm of heteronormative sexual behaviour. The law has a very narrow approach to sexuality and solely permits heteronormativity, or what it deems as normal. However, our normal or optimal sexuality is not something that is known; instead cultural values are what are relied on with regards to sexuality. To illustrate this, it can be said that an IQ of 160, or naturally blonde hair, are rare in society,14 but are considered normal, yet a rarity of a sexual nature is not permissible since it lies outside the confines of what is deemed to be ‘normal’.15 The law’s project of celebrating heteronormativity is in vain since ‘abnormal’ sexual behaviour continues to occur. However, since heteronormativity is considered the norm, the variety of sexual experiences is relatively unknown.16 Until the full range of sexualities may be openly embodied, the law’s power over

53

2015

Exeter Student Law Review

Vol.1/Issue.1

how we engage our bodies will remain obstructive of sexual autonomy, limiting it to embodying heteronormativity.

Sexual autonomy is restricted by the law and is justified by the harm caused by extreme pornography and engaging in BDSM. This includes moral and societal harm, as well as physical harm. When placing limits on pornography and BDSM, references are made to John Stewart Mill’s harm principle,17 which entails that these limits on sexuality are justified insofar as they are preventing harm to others.

As a result, apparent moral and general harms to society and the body are found as justification to limit pornography and engagement with BDSM. The law’s restriction of autonomy is a glorification of heteronormative sexuality and is partially justified by the immorality of divergent sexualities. Since the law sees ‘[p]leasure derived from the infliction of pain [as] an evil thing’,18 it is clearly moral judgements stating that BDSM is wrong. However BDSM is not something people are sinfully coerced into or the result of sexual abuse, it is simply a sexual sub-culture and the law fails to realize this by denoting it as morally corrupt.19 The ‘law’s concern…is with the maintenance of general standards of conduct— with the normative project of how all of us should behave towards each other and as members of a community—those whose identity and its expression challenges those normative standards will, necessarily find that identity and its expression regulated and limited…’20 The law operates under a strict set of norms which do not permit the variety of sexual experience to be fully expressed or embodied. The law operates with the idea that we strive to avoid harm, however, ‘S/M represents the most fundamental expression of that threat [the erotic to the law]: the embodied, sensuous, articulation of autonomy at the expense of the power of the law.’21 Thus the immorality of wanting to engage in harm for pleasure’s sake is contradictory to the law, consequently closing the door of sexual expression and destroying autonomy.

Additionally, extreme pornography faces similar moral restrictions and judgements. The inconsistencies of legislation governing pornography; previously discussed in relation to the AMSR 2014, in addition to the Criminal Justice and Immigration Act 2008 (CJIA),22 and the Criminal Justice and Courts House of Commons Bill (2014-2015) (CJC Bill),23 provide no basis for a consensual or concise understanding of why the legislation is in place. It appears as if moral justifications, based on a perception of harm and a limited set of moral values are used to ban the majority of pornography that does not promote a heterosexual identity. The consequence of which is a further limitation of sexual autonomy.

54

The Regulation Of Sexual Autonomy

The restrictions on pornography introduced by the CJIA 2008 were motivated by the governments need to take action after the case of R v Coutts,24 in which Liz Longhurst was killed by asphyxiation by her partner. Coutts had been watching what is categorized as extreme pornography before the death of Ms. Longhurst.

Unfortunately, a mere correlation of events led the government to conclude causation between the death of Ms. Longhurst and pornography. This inspired the subsequent consultation process and resultant legislation.25 Nowhere in this process was there a causal connection found between extreme pornography and actions of violence, however the legislation proceeded.26 This is an unfounded and illogical restriction limiting sexual autonomy by disallowing the enjoyment of all forms of pornography on the grounds that they should be corrupting, but in fact are not.

After the enactment of the anti-pornography legislation, cases emerged presenting further conflicts in moral standards illustrating the problem of the legislation. The government guidelines say that what is fitting for prosecution is ‘sadomasochistic material which goes beyond trifling and transient infliction of injury…activities involving perversion or degradation…’27 However, in a recent case, male on male urination and anal fisting were found not contrary to s63 of the CJIA 2008. 28 Society may be evolving in some instances, yet it is unclear precisely what is or is not legal, thus limiting sexual autonomy due to the looming fear of prosecution for pursuing one’s sexual interests.

The government is saying that one cannot watch and enjoy certain things because it leads to imitation, violence, abuse, and murder. In spite of this, there is no supporting evidence and what is more, the legislation fails to address what Weait claims to be the most disturbing area of pornography for imitation: that which fetishizes rape.29 Particularly for children, who have more impressionable minds.

Nevertheless, the CJIA 2008 was enacted. To remedy the blatant error, the CJC Bill (2014-2015) seeks to criminalise the possession of rape pornography, filling in the enormous gap left by the CJIA 2008. However, six years later, this legislation has yet to be enacted.30 Without a doubt, the CJIA 2008 limits sexual autonomy on moral grounds as opposed to evidential grounds, and does not accomplish its policy objective, and fails to adequately protect those who suffer from sexual violence.

Feminist arguments, such as those made by Catherine Mackinnon, condemn pornography.31 However, similar to the UK government’s evidence for legislation, she stretches studies to conclude a link between violence against women and pornography.32 Essentially, that extreme pornography ‘may encourage or reinforce interest in violent and aberrant sexual activity to the detriment of society as a 55

2015

Exeter Student Law Review

Vol.1/Issue.1

whole.’33 The government tried to parallel the approach regarding child pornography; however, there is no evidence to support the perceived negative effects of extreme pornography.34 The arguments for restricting extreme pornography have no evidential basis and cannot show the apparent harm.35 Further attempts by the government to restrict extreme pornography due to the physical harm it glorifies and promotes have been made with little cohesion, ultimately further restricting sexual autonomy. The Rapid Evidence Assessment (REA)36 by the government for the CJC Bill (2014-2015) fails to conclude anything substantive. The REA acknowledges that there is a gap in studies examined insofar as that they lack samples from the general population and predominantly involve North American university students and sexual offenders.37 Obviously, it is problematic and self-serving drawing conclusions by asking sexual offenders if they watch extreme pornography and causally linking it to their offences.

Moreover, ‘a causal link has yet to be clearly established between pornography and sexual offending or violence against women.’38 Consequently the objective of the CJC Bill (2014-2015) pornography legislation is to limit pro-rape attitudes and sexual offences,39 yet this is based on inconclusive evidence causally connecting these crimes to pornography. The consequence of this is a clear restriction of sexual autonomy based on arbitrary grounds for law making and a misguided attempt to prevent harm.

Similar to the seemingly harmful effects of extreme pornography, the physical harm undergone in BDSM is used to justify its illegality through criminal law. It is indisputable that BDSM involves a varying degree of physical harm. In Brown, Lord Templeman states that ‘[t]he evidence discloses that the practices of the appellants were unpredictably dangerous and degrading to body and mind and were developed with increasing barbarity…’40 However there is a vital difference between violence and harm that is not being examined by the law. Violence entails a loss of autonomy and non-consent, essentially being subject to cruel and unusual punishment. Whereas in BDSM, autonomy is preserved. In fact, one could go so far as to say that it is an absolute manifestation of autonomy since ultimate control is retained, metaphorically speaking ‘tying oneself up is binding only if the knot is no longer in one’s hands. For if [one] can at will, release [oneself, they are] only in appearance bound.’41 Essentially, the choice, control, and interconnectedness of pain and pleasure in BDSM greatly differentiate it from sexual violence.

Nevertheless, Brown establishes that the law will not preserve autonomy in a controlled BDSM situation. Under the law, sexual choice to subject oneself to the possibility and enjoyment of physical harm is entirely removed. The automatic equating of harm with evil and irrational choices fails to understand the rationality

56

The Regulation Of Sexual Autonomy

of choosing to engage in BDSM, and most importantly fails to understand and acknowledge the variability of sexual experience.

The law cannot grasp one wanting to be physically harmed, the idea that ‘[o]ur only real pleasure is to squander our resources to no purpose…’42 is entirely contradictory to the law’s nearly scientific approach. The fact that pleasure comes from inflicting pain or degradation; contrary to criminal law, being humiliated; contrary to tortious law; is entirely incomprehensible to the law’s heteronormative rational perspective. One’s sexual preferences are highly personal and subjective, and necessarily equating BDSM with violence akin to rape, ABH, or grievous bodily harm grossly misunderstands harm in the context of BDSM. The problem is that the law has a black and white approach: ‘[t]he law aspires to science: to the immanent generalization subsuming the emergent particularity, to prediction and control of social regularities and regulations, preferably codified.’43 The law simplifies pain and harm to something necessarily evil and does not allow for an understanding of the subjectivity and variety of sexual experience.

Autonomy to engage in BDSM is limited by the courts’ discretion and ability to exercise power. Olson points out that ‘Lord Mustill stated that bodily harm or pain incurred during sexual activity that is momentary or slight is acceptable and not subject to charges...’44 However, Brown clearly excludes BDSM from the courts’ interpretations of permissible harm. It is an arbitrary categorization of what is legal and what is illegal in the sexual sphere.45 Brown illustrates the immense power held by the judiciary and the bias with which they make decisions regarding what constitutes permissible sexual activity. ‘[I]n Brown, there was no empirical evidence provided to support the phenomenon…that those who engage in consensual sado-masochistic cruelty in a ritualised setting are prone to have their inhibitions loosened and escalate to nonconsensual acts of cruelty.’46 Similar to the extreme pornography legislation,47 the law tries to find an evidential basis to discredit those who enjoy BDSM or extreme pornography without any success, then resort to deeming it illegal anyway, regardless of their lack of evidence. It is the absence of harm in areas which are morally objectionable in society that the law feels obliged to remedy and protect people from apparent moral harm. The consequences of this are immense, as they criminalise activities which are central to people’s sexual expression, and strip them of their ability to be autonomous with regards to their sexuality.

Sexual autonomy is further restricted by the law making consent meaningless.

Consent is pivotal for autonomy;48 the ability to choose whether or not you wish to engage in or with something, and accepting the resulting consequences. Moreover,

57

2015

Exeter Student Law Review

Vol.1/Issue.1

autonomy entails choice which in turn shows an understanding of morality, such as differentiating right and wrong.49 For BDSM, Brown compared with Wilson and Lock50 is indicative of an inconsistency within the law, insofar as consent to harm is permissible if it occurs in an act that embodies heteronormativity. Thus the insignificance of consent is another factor enforcing the illegality of BDSM and destruction of autonomy.

The dismissal of consent to harm in the context of sexuality is discriminatory. The law misses differentiating between acts that are non-consensual, and the appearance to an outsider of non-consent. This is a crucial point because consent to harm is pivotal for many activities, for example medical practises and sports.51 There is a fundamental right to refuse medical treatment even when objectively it appears to be a destructive choice. The patient is autonomous and can choose what to consent to regarding their body.52 â&#x20AC;&#x2DC;Whether the reasons for making that choice are rational, irrational, unknown or even non-existent [t]hat [their] choice is contrary to what is to be expected of the vast majority of adults is only relevant if there are other reasons for doubting [their] capacity to decide.â&#x20AC;&#x2122;53 Whereas when the choice involves non-heteronormative sexualities, consent is not applied with the same grace, since the law is prejudiced against allowing sexual autonomy.

Consent is either meaningless, or as the Supreme Court of Canada found,54 consent may be continuously required; therefore a loss of consciousness from erotic asphyxiation during consensual BDSM amounts to a loss of consent. In line with Brown, non-normative sexual practises entail a disregard for consent.55 Consenting to harm is not an option in a sexual context, greatly limiting sexual autonomy.

For rape, consent is definitive, since it is committed when a person engages in sexual intercourse with another without their consent.56 It seems that consent is crucial to medical practice, sports, and the offence of rape, however for BDSM it is deemed meaningless. Paradoxically, due to an open discussion about oneâ&#x20AC;&#x2122;s limits and what is pleasurable, ultimately maximizing control,57 BDSM represents the pinnacle of consent in sexual activity and an absolute manifestation of autonomy.

The insignificance of consent to harm in the context of BDSM, but not other circumstances, is supportive of the forced embodiment of heteronormativity and a restriction of sexual autonomy.

An understanding of the context of BDSM can aid in re-evaluating the laws position. The law does not explicitly criminalise BDSM, however it entails expressing oneself in conflict with the norms of society,58 such as preserving bodily integrity. People who engage in BDSM are seen as having a problematic mental state.59 Since the law sees harm as something painfully unwanted, the distinction 58

The Regulation Of Sexual Autonomy

between harm incurred while engaging in consensual BDSM and non-consensual sexual violence becomes difficult. However, the context in which each of these occurs is crucial to objectively understanding each activity, and if the law could account for the consent and intersubjective understandings that are deeply ingrained in BDSM, it becomes clear how far it is from non-consensual violence.

The goal of BDSM is not to be violent; it is ‘arousal enhancement’.60 The context of BDSM is not pathological, violent, or criminal and that needs to be acknowledged to so that people can engage in BDSM without prosecution and preserve their sexual autonomy.

Likewise, pornography reflects the range of contexts in which sexual gratification may be reached, which the law does not accept. Not everyone must enjoy pornography within the same ‘vanilla’ heteronormative category. Sexuality is highly varied, and ‘one person‘s erotica is another person‘s obscene pornography’ but that does not justify criminalisation.61 Again, depending on the context, the person who is watching the pornography, and what sexual desire is being reflected, experiences could range from being a highly enjoyable to uncomfortable.

Oddly, determining whether certain material or content is arousing is in the hands of the jury, which is something clearly highly personal and subjective, and cannot be understood in its entirety objectively.62 Sexual autonomy can be better acknowledged by the law if a contextual approach can be taken as opposed to a reductionist approach. If someone finds pleasure in being whipped to the point of bleeding, it should not be seen as purely unwanted harm and a pathological desire that needs to be remedied. The relationship between the mind and body is crucial to our understanding of varied experiences.63 If you detach the mind from the body, or the subjective experience of the act of whipping, then it is just a body being whipped and without that individual understanding it can be mistaken for violence. This is why the entire context is important; to take the objective experience and examine it with the aid of subjective perspectives. Then the variety of sexual experience as exemplified in BDSM and extreme pornography may be better understood by the law.

BDSM may have leaked its way into popular culture,64 and a handful of cases regarding extreme pornography show non-guilty verdicts reflecting changing standards.65 However, the laws regarding consent to harm in a sexual context remain the same, and the AMSR 2014 takes steps backwards for personal enjoyment of pornography. The law needs to see sexuality as central to human experience and appreciate its varied expression and respect individual’s autonomous choices to engage in all these experiences. Olson makes an interesting point about S&M actually being a model for sexual autonomy as participants have 59

2015

Exeter Student Law Review

Vol.1/Issue.1

to engage in open discussions about interests and boundaries.66 It is laden with consent and exemplifies sexual autonomy and embodying one’s true sexuality.

Weait finishes his essay on Sadomasochism and the Law with an important query, stating ‘the legality of S/M… is a question that goes to the heart of the function of law itself.’67 This brings to question the laws position and purpose with regards to regulating our sexuality.

The law dictates the boundaries in which one can be autonomous, and the ultimate state in which one is autonomous does not necessitate always choosing what is the most objectively beneficial to our objective wellbeing, or always choosing the salad over the donut.68 Preserving sexual autonomy entails allowing people their own independent choice of whether or not they wish to engage in a full variety of sexual experiences and it is not the law’s place to arbitrarily restrict what we should or should not enjoy.

For BDSM and extreme pornography, contextualizing them as a positive part of our sexual expression may influence the position the law takes. This can help reassess the fact that the law makes consent meaningless and people are stripped of their autonomy when it comes to sexuality. Furthermore, a re-evaluation is needed of the moral harm or apparent physical harms, without causational evidence, being used as a justification for the laws limitations. An examination of the laws’ power over BDSM and extreme pornography reveals a troublesome picture for those whose ultimate sexual expression and pleasure is derived from these activities.

The result is that the law greatly restricts sexual autonomy.

Mitchell Travis, ‘Feminism, Embodiment and Law’ (Science, Culture and the Law at Exeter, 1 April 2014) <http://scule.org.uk/?p=108> accessed 5 December 2014.

2 ibid.

3 Audiovisual Media Services Regulations 2014, SI 2916.

4 Myles Jackson ‘The following content is not acceptable’ (The Obscenity Lawyer, 1 December 2014) <http://obscenitylawyer.blogspot.co.uk/2014/11/the-following-content-is-not-acceptable.html> accessed 7 December 2014. The assertion that consuming male ejaculate, but not female, is permissible, is discussed by Myles Jackson in his blog post on the matter. Additionally, further information and legislation on the matter can be found in the Audiovisual Media Services Regulations 2014, s2 and the British Board of Film Classification Guidelines 2014.

5 Myles Jackson, ‘The UK’s sexist new pornography restrictions aren’t just an act of state censorship but could be the first step towards something even worse’ (The Independent, 4 December 2014) <http://www.independent.co.uk/voices/comment/the-uks-sexist-new-pornography-restrictionsarent-just-an-act-of-state-censorship-but-could-be-the-first-step-towards-something-even-worse9903830.html> accessed 5 January 2015.

6 Communications Act 2003, s 368E3(b), amended by Audiovisual Media Services Regulations 2014; see also British Board of Film Classification Guidelines 2014, 24.

7 R v Brown [1994] 1 AC 212, 235 (Brown).

1

60

The Regulation Of Sexual Autonomy

R v Wilson [1996] Crim LR 573 (Wilson).

Brown (n 6) 236.

10 Wilson (n 7) 574 (Russell LJ).

11 ibid.

12 Offences Against the Person Act 1861, s47.

13 ‘”Fifty Shades” sex-session assault accused cleared’ (BBC News Suffolk, 22 January 2013) <http://www.bbc.com/news/uk-england-suffolk-21145816> accessed 5 January 2015.

14 The prevalence of BDSM, Durex Global Sex Survey of 41 countries states 5% of people engaged in BDSM and 20% used blindfolds, masks or other forms of bondage. See ‘Durex Global Sex Survey’ <http://www.data360.org/pdf/20070416064139.Global%20Sex%20Survey.pdf> accessed 20 December 2014.

15 Peggy J Kleinplatz and Charles A Moser, ‘Is SM Pathological?’ (2005) 6(3) Lesbian and Gay Psychological Review 255.

16 The observation that heteronormativity is the prevailing norm has consequences such as society paying little attention to abnormal sexualities. However, this subject matter deserves its own in depth discussion and examination not suitable for here. Nevertheless, one may briefly speculate on the underlying cause of why heteronormative views dominate society. This may be related to religion dictating that heteronormative couples are morally right, or due to the past criminalisation of homosexuality, only heteronormative relationships have been openly permitted. What is essential for this present discussion, is that in recent history heteronormativity is the most apparent and displayed form of sexuality. The consequences of this are negative for nonheteronormative sexualities, as they are the minority struggling to find their place alongside the majority.

17Matthew Weait, ‘Sadomasochism and the law’ in Darren Langdridge and Meg John Barker (eds), Safe, Sane and Consensual: Contemporary Perspectives on Sadomasochism (Palgrave Macmillan 2007) 4.

18 Brown (n 6) 237 (Lord Templeman).

19 J Richters PhD and others, ‘Demographic and Psychosocial Features of Participants in Bondage and Discipline, “Sadomasochism” or Dominance and Submission (BDSM): Data from a National Survey’ (2008) 5 JSM 1660, 1667; Brown (n 6) 235.

20 Weait (n 17) 3.

21 Weait (n 17) 21.

22 Criminal Justice and Immigration Act 2008, s63.

23 HC Criminal Justice and Courts HC Bill (2014-2015), cl16. Now the Criminal Justice and Courts Act 2015, s37.

24 R v Coutts [2005] 1 WLR 1605.

25 Home Office/Scottish Executive Consultation: on the possession of extreme pornographic material’ (Commons Library SN05078, 2005).

26 ibid.

27 Crown Prosecution Service Guidelines on Obscene Publications (Crown Prosecution Guidelines) <http://www.cps.gov.uk/legal/l_to_o/obscene_publications/> accessed 11 January 2015.

28 R v Michael Peacock (Southwark Crown Court 12 January 2012.

29 Weait (n 17).

30 When this paper was written, this bill was at the ping-pong stage in the House of Commons. As of the 12 February 2015, it received royal assent and is now an Act of Parliament.

31 Catherine MacKinnon Toward a Feminist Theory of the State (Harvard University Press 1989).

8 9

61

2015

Exeter Student Law Review

Vol.1/Issue.1

Ronald Dworkin, ‘Women and Pornography’, in Jessica Spector (ed) Prostitution and Pornography: philosophical debate about the sex industry (Stanford University Press 2006), 300.

33 Home Office/Scottish Executive Consultation: on the possession of extreme pornographic material’ (Commons Library SN05078, 2005) para27.

34 Andrew Murray ‘The Reclassification of Extreme Pornographic Images’ (2009) 79 MLR 73, 78.

35 Despite the flawed feminist arguments against extreme pornography, I would not dismiss or diminish feminist arguments about women’s oppressed position in society. It may be argued simply, that pornography is not the source of this imbalance.

36 Catherine Itzin, Ann Taket and Liz Kelly The evidence of harm to adults relating to exposure to extreme pornographic material: a rapid evidence assessment (REA) (Ministry of Justice Research Series 11/07, 2007) cited in Criminal Justice and Courts HC Bill (2014-2015) proceedings as evidence for anti-rape pornography law.

37 ibid.

38 Howitt and Cumberbatch (1990) review of research for Home Office, cited in The evidence of harm to adults relating to exposure to extreme pornographic material: a rapid evidence assessment (REA), 27.

39 For more information see the Government Impact Assessment: Policy Objective for the Criminal Justice and Courts HC Bill (2014-2015).

40 Brown (n 6), 235.

41 Gerald Dworkin, The Theory and Practice of Autonomy (Cambridge University Press 1988), 42.

42 Bataille, in Weait (n 17), 21.

43 Catherine Mackinnon, ‘Feminism, Marxism, Method and the State: Toward a Feminist Jurisprudence’ (1983) 8 Signs 635.

44 Ingrid Olson ‘Asking for it: Erotic Asphyxiation and the limitations of sexual consent’ (2012) 4 JGLR 171, 180.

45 Julia Tolmie, Consent to harmful assaults: the case for moving away from category based decision making, (2012) CLR 664.

46 ibid, 669.

47 Extreme pornography legislation includes the Criminal Justice and Immigration Act 2008, the Audiovisual Media Services Regulations 2014, and the supporting Rapid Evidence Assessment for the Criminal Justice and Courts HC Bill (2014-2015).

48 Rosemary Hunter and Matthew Weait, ‘R v Brown Commentary’, in Rosemary Hunter, Clare McGlynn and Ericka Rackely (eds) Feminist Judgements: from Theory to Practice (Hart Publishing 2010) 243.

49 Raanan Gillon, ‘Ethics needs principles—four can encompass the rest—and respect for autonomy should be “first among equals”’ (2003) 29 J Med Ethics 307.

50 ‘Fifty Shades' sex-session assault accused cleared’ (BBC News Suffolk, 22 January 2013) <http://www.bbc.com/news/uk-england-suffolk-21145816> accessed 5 January 2015.

51 Weait (n 17) 78.

52 Re B [2002] 2 All ER 449.

53 Re T (Adult: Refusal of Treatment) [1993] Fam 95, (Lord Donaldson MR).

54 R v JA [2011] SCR 440.

55 Olson (n 44) 191.

56 Sexual Offences Act 2003, s1.

57 Olson (n 44).

58 Weait (n 17) 3.

32

62

The Regulation Of Sexual Autonomy

‘Demographic and Psychosocial Features of Participants in Bondage and Discipline, “Sadomasochism” or Dominance and Submission (BDSM): Data from a National Survey’ 1660; see also DSM-IV listing for BDSM. 60 Bill Thomson, ‘Sadomasochism: Painful perversion or pleasurable play?’ (Cassell 1994), 20.

61 Olson (n 44).

62 William Wilson ’Is hurting people wrong?’ (1992) 14(5) J Soc Wel & Fam L 388.

63 Fletcher, Fox & McCandless in Travis M ‘Feminism, Embodiment and Law’ (Science, Culture and the Law at Exeter, 1 April 2014) <http://scule.org.uk/?p=108> accessed 5 December 2014.

64 A primary example of this is the popular book ‘50 Shades of Grey’ by E.L. James.

65 R v Walsh (Kingston Crown Court 8 August 2012); R v Peacock (n 28).

66 Olson (n 44) 193.

67 Weait (n 17) 28.

68 Gillon (n 49).

59

63

64

SUBMISSIONS We are always keen to receive submissions from students within the law school.

The Editors are pleased to consider articles up to 8,000 words in length from LL.B. or LL.M. students of the University of Exeter. Primarily, we accept pieces written in the course of your studies, but are happy to accept original pieces, which shall be peer reviewed to ensure high standard submissions.

All submissions, however, must conform to the House Style and should have high standards of referencing. Please check our website for full details on submission guidelines, under the section, â&#x20AC;&#x2DC;Submissionsâ&#x20AC;&#x2122;.

65