Pembroke Law Journal - Michaelmas 2021 by pemlawsoc

Contents President’s Foreword

Vice President’s Foreword

Contract- Michael Tucker

CSPS- Maya Edelstein

CSPS- Claudia Saxton

Tort- Lily Young

Land- Henry Steele

Constitutional- Muhammad Syed

Constitutional- Abi Cooper

President’s Foreword Welcome to the very first volume of the Pembroke Law Journal, a publication focused on students being able to share their thoughts on legal or political issues, whether domestic or globally. I am pleased to have started this journal with the help of the rest of the wonderful Pembroke Law Society committee, and glad to have such a diverse selection of pieces, from the private law to the public; it is a real show of intellectual strength and courage to put these academic ideas into the public sphere. If you are interested in submitting your own piece for the next volume, please email your submission to lawsoc@pem.cam.ac.uk and the journal editor will be in touch.

Michael Tucker, Pembroke Law Society President.

Vice President’s Foreword Welcome to the first-ever edition of the Pembroke Law Journal! I am incredibly excited to be starting this journey alongside the President, Michael Tucker, and cannot wait to see how this journal will continue to develop and grow over the years. Here’s to a great Michaelmas, imbued with the spirit of cooperation and intellectual pursuits which this journal showcases and celebrates.

Maya Edelstein, Pembroke Law Society Vice President.

A Series of Frustrating Events By Michael Tucker Frustration in the law of contract is largely concrete: if some form of intervening event occurs which makes satisfying the contract radically different to how it was supposed to be,1 or impossible,2 the contract can be said to be frustrated. However, there seems to be difficulty when analysing contractual frustration in the so called “coronation cases”, including Krell v Henry3 and Herne Bay Steam Boat Company v Hutton.4 Many academics speak of “frustration of purpose”,5 but I will conclude that this is a mistaken term which does nothing but confuse principles of frustration. Existing principles, namely that of impossibility, would have sufficed in these cases to generate the same outcome, without the creation of the supposedly new class of frustration of purpose. Krell v Henry Krell v Henry was a case including the hiring of a flat in Pall Mall at the time of the coronation of King Edward VII. The flat was advertised as having a good view of the coronation, which was arranged to pass through Pall Mall. There was no express reference to the coronation in the contract. When the coronation was postponed, due to the King becoming ill, the hirer of the flat claimed there was a total failure of consideration. The court held that the contract was frustrated.6 Herne Bay v Hutton Herne Bay was a case heard just days before Krell, concerning the same coronation postponement. Part of the proposed celebration for the coronation was to include a Royal Naval Review at Spithead, and so a contract between the claimant in the case and the defendant stipulated that the claimant’s 1

Davis Contractors v Fareham Urban District Council [1956] AC 696, 728 (Lord Radcliffe). Taylor v Caldwell [1863] 3 B & S 826, (Blackburn J) 3 [1903] 2 KB 740 4 [1903] 2 KB 683 5 Morgan, J, Great Debates in Contract Law; McBride, N, Key ideas in contract law. 6 Krell v Henry [1903] 2 KB 740 2

steamship should be “at the disposal” of the defendant for a day’s cruise round the fleet and the next day for similar purposes. When the review was cancelled, the claimant wrote to the defendants to let them know the boat was ready, but the defendants didn’t reply, not paying the agreed sum. The court found that the contract was not frustrated, and so the defendant was ordered to pay.7 The Issue The issue when looking at these cases is that they seem vastly similar in factual patterns, but opposite in responses from the court (days apart, with the same panel of judges). Factually, both the flat hire in Krell and the boat hire in Herne Bay were disrupted by the postponement of the coronation, so why was frustration found in Krell, but the contract in Herne Bay was left intact? There are a few interpretations, some closer than others to the court’s reasoning, but my interpretation is closest to the court’s reasoning, and minimises confusing labelling of contractual principles. The Orthodox View The orthodox view can be seen from Jonathan Morgan, who explains the outcome of Krell being based on the purpose of the contract being frustrated. He says the hiring of the flat was now worthless to the hirer, and so there was no point in fulfilling the contractual obligations. Morgan submits that the contract could have been fulfilled.8 Conversely, in Herne Bay, the purpose was not frustrated, because the purpose of the contract was not based on the coronation. Although the defendant’s purpose was to see the naval review, this was neither here nor there for the claimant- they didn’t care whether the naval review went ahead or not, they merely hired out the ship. The issue with this interpretation is that it is artificial to suggest the court focused on the contract being “worthless” in the reasoning of Krell. After all, the flat owner wouldn’t have considered it to be worthless. Furthermore, Lord Justice Vaughan Williams, in his reasoning, uses the example of a cab contract, where the hirer hires the cab driver to drive them to Epsom on Derby Day at an enhanced price for the journey. If the race was cancelled, would we 7

Herne Bay Steam Boat Company v Hutton [1903] 2 KB 683 Morgan, J, Great Debates in Contract Law, p179.

say the contract was frustrated? Vaughan Williams LJ says no, it would be intact. This doesn’t fit with Morgan’s interpretation. If it was enough to be worthless in Krell, surely it is the same in the Epsom Cab scenario. The cab trip was worthless to the hirer, like the flat hiring was worthless to the hirer in Krell. Morgan’s interpretation and attempt to reconcile Krell and Herne Bay, therefore, fails. McBride’s Interpretation Nicholas McBride provides an alternative interpretation to reconcile the cases in this area; he uses the “officious bystander” test from Shirlaw v Southern Foundries (1926) Ltd.9 His test would ask: if an officious bystander asked A and B whether the contract would still be in force in the situation that has now arisen, would A and B have responded “of course it wouldn’t apply!”10 Putting this interpretation into effect, in Herne Bay,11 although the defendant would say the contract wouldn’t apply, the claimant ship owner would likely say the contract would still be in force. This is because, McBride argues, the claimant would happily have hired out the ship to someone else on the same day at the same time.12 Therefore, there is no frustration. In the cab trip to Epsom example, the taxi driver would likely say the contract is intact, after all, they would have just driven someone else to somewhere else- the contract did not rest on the events of the race at Epsom, and therefore no case of frustration is made out. In the Krell case,13 neither the owner nor the hirer would say the contract is still intact in the event that the coronation didn’t go ahead, so frustration is made out. Although the results of McBride’s interpretation fit with the conclusions made by the Court of Appeal, it doesn’t truly explain why the parties would consider the contract to be made out or frustrated. Why did the contract in Krell instinctively make out that it would be frustrated in the event of a postponement, but the contracts in the cab trip and the hiring of the steam ship were left intact? What reasoning is this based on? McBride calls these cases 9

[1939] 2 KB 206, 227 (Mackinnon LJ) McBride, N, Key ideas in contract law, p42.

10 11 12 13

[1903] 2 KB 683 McBride, N, Key ideas in contract law, p42. [1903] 2 KB 740

“frustration of purpose” cases, so does this mean the officious bystander is looking at the purpose of the cases? My Interpretation McBride’s interpretation is close to the optimal reasoning for reconciling these cases, but it requires changes in order to fix the confusion around this area in the law of contractual frustration. My submission is that we should stop talking about purpose, and instead focus on the already established concept in this area of the law of contract: impossibility of meeting the foundation of the contract. This was discussed in Davis Contractors v Fareham Urban District Council.14 A building contract was created at the end of World War One to build houses for a fixed price, but within a short period, the builders realised it would be much more expensive due to the economic conditions at the time (rations, restrictions on labour, etc). The House of Lords found that the contract was not frustrated; it had just become more onerous and expensive. Lord Radcliffe commented, at [728], that “frustration occurs whenever… a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract”.15 Here, therefore, because the contractual obligations could still be performed, frustration wasn’t shown. This can also be seen in Taylor v Caldwell.16 This case concerned the hire of a music hall and gardens for a concert, which subsequently burned down. The court found that there was an implied condition in the contract that the core item continued to exist, which, as the music hall burned down, and that is core to being able to have concerts, meant the contract was frustrated. In other words, it was impossible to fulfil the core terms of the contract, by the event of the burning down. Applying these cases to the coronation cases, in Herne Bay,17 the foundation of the contract was clearly nothing to do with the naval review: the hirer wanted the ship for that reason, but the ship owner merely let out the ship, with no real concern for what exactly it was used for. In this way, the 14

[1956] AC 696 Ibid, 728 16 [1863] 3 B&S 826 17 [1903] 2 KB 683 15

motivation of one party did not form the foundation of the contract; it was therefore possible to fulfil the core obligations, and so there could be no frustration. In Krell,18 despite the express contract not mentioning the coronation, the advertisement for the room explicitly noted its use for overseeing the coronation. As well as this, the room hiring was for the days, not the nights, which is when the coronation proceedings would occur, and the price of the room was matched to the value taking into consideration the coronation. As McBride writes, this room would not have been booked out had the coronation not been planned, at all.19 In this way, the foundation of the contract was a license to use the room to see the coronation. It was impossible to fulfil this obligation without the coronation, and so the contract was frustrated. The difference between Krell and Herne Bay, therefore, is what the parties determined the foundation of the contract to be. This is close to McBride’s interpretation, but he continued calling it frustration of purpose, and didn’t explain what was going on in the minds of the parties, whereas this interpretation fits the cases into existing doctrines. Frustration of purpose has only ever been used in Krell, and no subsequent cases since. This, it is submitted, is a demonstration of the fact that frustration of purpose isn’t the best description- naming it impossibility means it is put alongside other frustration cases, and streamlines the law on contractual frustration, as well as explaining the difference in treatment between Krell and Herne Bay. This interpretation is also closer to judicial explanation in the Krell case. Lord Justice Vaughan Williams notes that “it is sufficient [for frustration] if a state of things or condition expressed in the contract and essential to its performance perishes or fails to be in existence at that time. In the present case the condition which fails and prevents the achievement of that which was, in the contemplation of both parties, the foundation of the contract.”20 Lord Justice Vaughan Williams has therefore assessed, in Krell, that because the foundation of the contract was impossible to fulfil, frustration must ensue. This is compatible with both Davis Contractors and Taylor v Caldwell and is therefore better for consistency within the law of frustration in contract. 18 19 20

[1903] 2 KB 740 McBride, N, Key ideas in contract law, p42. [1903] 2 KB 740, 754 (Vaughan Williams L.J)

‘Punishment is riven with ambivalence, and an attempt to constrict it to a single purpose will always lead to dissatisfaction because it will entail the suppression of other ambitions and emotions.’ (CANTON, 2017). By Maya Edelstein As Canton himself acknowledges, attitudes to punishment are largely driven by intuition, as shaped by emotion (per Karstedt) and social attitudes and upbringing.21 Thus, there are inevitable tensions and disagreements within this field. Different figures within the criminal justice system (“CJS”) and society at large will embrace different purposes for punishment, and be satisfied by different results, perhaps aligning with different penal philosophies – some retributivist, some consequentialist. As such, satisfaction is difficult to measure; it largely depends upon whose satisfaction we’re considering, and even within a specified target audience, there may be internal conflicts. Therefore, it must be questioned whether a single purpose to punishment suppresses other ambitions, and whether it is this that leads to dissatisfaction – or if there will be dissatisfaction regardless of the purpose(s) embraced. Ambivalence? Intuition and emotions, which play a significant role in one’s attitude to punishment, are not universal. Thus, a penal system that satisfies one person may not satisfy another. However, differences in opinion between different people are not the only example of ambivalence regarding punishment – opinions may be self-contradictory and complex, so it is difficult to artificially isolate a single objective for punishment even within one’s own mind. This is mirrored in modern penal theories, generally considered to be on opposing ends of the spectrum: the modern ‘just deserts’ retributivist theory proposed by von Hirsch, and the consequentialist utilitarian theory.22 Proponents of retributivism believe that punishment is only justified if the offender has done something wrong and so deserves said punishment. Under this view, punishment’s main aim is to pose a moral judgment of rational and autonomous agents, its practical consequences irrelevant. ‘Just deserts’, in particular, emphasises the need for censure and proportionality. As opposed to 21 22

Canton, R., 2018. Probation and the philosophy of punishment. Probation Journal, 65(3), pp.252-268. Von Hirsch, A., 1992. Proportionality in the Philosophy of Punishment. Crime and Justice, 16, pp.55-98.

this purely “backward looking” theory (as dubbed by Ashworth), under the utilitarian perspective, the most important element of punishment is its consequence, because the only way in which the pains of punishment may be justified is through the greater good they cause.23 Thus, the two seem to be completely distinct and opposing views of punishment, calling for different aims. However, this fails to account for some overlaps between the two theories. For instance, while deterrence is a consequence of punishment and would thus seem to be an appropriate aim only under a consequentialist penal theory, it is also acknowledged as a worthy aim in ‘just deserts’ (though a secondary purpose and only operating within an ethical framework). It seems that even these supposedly opposing penal theories are somewhat ambivalent as to their aims; if so, how can the average person avoid such ambivalence? Dissatisfaction due to suppression? If the CJS were to embrace only one penal theory and a purpose for punishment consistent with the theory (e.g. censure in a just deserts framework or crime reduction under utilitarianism), supporters of other theories would inevitably be dissatisfied. However, the overlaps between the theories mitigate this, as they suggest that embracing one theory will not completely suppress other ambitions. Nonetheless, even if other ambitions and emotions are not suppressed, embracing only one penal theory might cause dissatisfaction for other reasons. One such reason is that both penal theories summarised above are flawed in some way. Though there are a multitude of flaws in each, I will only focus on a few. Firstly, ‘just deserts’ is intended to ensure proportionality through the ordinal and cardinal scales suggested by von Hirsch.24 However, this is marred by the subjectivity of offence seriousness (as ordered by the ordinal scale) and the severity of punishment which would be proportionate to it (ordered by the cardinal scale). Both are affected by societal and cultural norms, which may also change with the times. For instance, sexual offences may once have been seen as far less serious than they are now, placing lower on the ordinal scale and warranting less severe punishment. In some cultures, this may still be the case. Thus, a core element of retributivism – proportionality – is undermined. 23

ASHWORTH, A., 1986. PUNISHMENT AND COMPENSATION: VICTIMS, OFFENDERS AND THE STATE. Oxford Journal of Legal Studies, 6(1), pp.86-122. 24 Von Hirsch, A., 1992. Proportionality in the Philosophy of Punishment. Crime and Justice, 16, pp.55-98.

Utilitarianism is also flawed. A core criticism of it is that it may reduce people into devices, rather than recognising their moral agency. A practical example of this is exemplary sentencing in General Deterrence approaches. Though utilitarianism assumes that humans are rational creatures by assuming that punishment can affect their decisions regarding crime, it turns punishment into a way of altering society rather than reacting to a person’s own behaviour. This may point towards an internal paradox – if people are rational enough to make a cost-benefit analysis of committing crime (as deterrence supporters assume), then how not treating them as creatures with agencies be justified? As argued by C.S Lewis, this is also less humanitarian – as it forces offenders to conform to societal expectations, substituting their personality with society’s ideals.25 A purely utilitarian approach may also give rise to disproportionate sentences. Though it involves the principle of parsimony (Bentham), demanding that punishment be used only to the minimum extent that’s needed to reduce crime and thus supporting proportionality, it is challenging to deduce what might be enough to reduce crime.26 This is because motivations for crime are highly subjective; this is supported by Rex’s 2005 study on effective supervision, highlighting the role that moral and normative concerns may play in deterrence.27 Without the intrinsic requirement of proportionality that comes with retributivism or an effective parsimony principle, utilitarian purposes for punishment may result in disproportionality. Both purely retributivist and purely utilitarian purposes would give rise to significant issues. Constricting punishment to one such goal would lead to dissatisfaction, not necessarily because it suppresses other ambitions but rather due to internal flaws. However, it is submitted that bridging different purposes together would not necessarily reduce dissatisfaction. In England and Wales, s.57 of the Sentencing Act 2020 sets out multiple punishment purposes. This broad discretion afforded to judges in deciding which objectives to prioritise can lead to inconsistency in sentencing and potentially creates room for 25

Lewis, C. and Babbage, S., n.d. C.S. Lewis on punishment. Corry, J., Bentham, J. and Everett, C., 1946. The Limits of Jurisprudence Defined. Being Part Two of an Introduction to the Principles of Morals and Legislation. The Canadian Journal of Economics and Political Science, 12(2), p.234. 27 KLECK, G., SEVER, B., LI, S. and GERTZ, M., 2005. THE MISSING LINK IN GENERAL DETERRENCE RESEARCH*. Criminology, 43(3), pp.623-660. 26

discrimination. This is supported by Hood’s (admittedly dated but still interesting) 1992 study, which concluded that differences in sentencing between BAME defendants and white defendants were largest with offences regarding which judges had more discretion.28 Such an unstructured range of purposes may also create vulnerability to societal trends. Populist punitiveness, for instance, seems to be sweeping England and Wales, as is reflected in decline in community orders and increase in custodial sentences in recent years (see: Hills and Mews, 2018)29 – in 2020, there was a 24% increase in offenders sentenced to immediate custody for drug offences compared to the year ending March 2019 (MoJ, 2020).30 Thus, while allowing flexibility in punishment purposes allows more ambitions to be taken into account, this could undermine the CJS’s legitimacy and simply undermine various ambitions and purposes at the whim of policy-makers. While those who agree with policy-makers’ values at that particular point in time may be satisfied by this, others would not be.

Hood, R. and Cordovil, G., 1994. Race and sentencing. Oxford: Clarendon Press. Ministry of Justice, 2019. e impact of short custodial sentences, community orders and suspended sentence orders on reoffending. 30 Ministry of Justice, 2021. Criminal Justice Statistics quarterly, England and Wales, October 2019 to September 2020. 29

Looking backwards, we can see that youth justice is both complex and volatile. Taking this observation into account, and looking forwards, how can a youth justice system which is both meaningful and legitimate be created? [Cambridge Law Tripos, 2020]. By Claudia Saxton Looking backwards it is clear that there hasn’t been a consistent approach towards the youth justice system. Instead, it has been too reactive and politically focused. An ideal youth justice system should be child focused to make it meaningful to the individuals who it will impact and legitimate as it will be based on logic. Complex and Volatile To create an ideal youth justice system (YJS), it is necessary to understand why it has been so complex and volatile to address these issues and ensure it directly addresses the needs of youths. Over the last century, the youth justice system has been back and forth regarding its focus between welfare and punishment. The 1933 CYPA established the welfare principle, but this never meant a pure focus on welfare and rehabilitation and since then there have been many changes bringing the system back to a more punitive one. These punitive trends have been linked to high profile cases such as the murder of James Bulger in 1993.31 This resulted in the removal of the presumption of doli incapax in the Crime and Disorder Act 1998 and the Government doubled the maximum sentence in young offender institutions for 15–17-year-olds from 1-2 years. The case was highly politicised and encouraged toughness in the youth justice system (Goldson 2013).32 By reacting to events rather than evidence the Government fail to understand why youths commit crime meaning the system is not meaningful or legitimate and rather just responds to what the public want.

Sharratt, T., 1993. James Bulger 'battered with bricks'. The Guardian,. Goldson, B., 2013. ‘Unsafe, Unjust and Harmful to Wider Society’: Grounds for Raising the Minimum Age of Criminal Responsibility in England and Wales. Youth Justice, 13(2), pp.111-130.

Child first; offender second A child first, offender second approach (as practised in Wales)33 focuses on child friendly practices ensuring that the child and their rights and needs are prioritised. This approach is meaningful and legitimate responding to the evidence regarding youth offenders. An approach led by adult centric decision making has been shown to lack inclusionary and equitable methods accommodating to the standard required by children thus making it not legitimate (Charles and Haines).34 The YJS should be meaningful to young people as those are who it affects. This in turn will make it meaningful to the public if awareness is brought, supported by evidence, of what actually works regarding preventing youths from offending. For the system to be legitimate, it needs to be based on logic, which it is currently not and is more reactive and politicised with the Government just responding to what the public reaction is. This however is detrimental. For example, with Thompson and Venables, the real social services issue was not adequately addressed looking into the extreme abuse and neglect they had suffered and instead the YJS turned more punitive clearly not addressing the pressing needs of youths who commit crime.35 We know that young people who commit crime face issues from five factors: family, school, community, peers and individual (Farrington 2006) and thus the YJS should reflect that and aim to resolve these issues.36 This approach should have three key aspects as set out below.

1. Maximum Diversion, Minimum Intervention As the proposed youth justice system will be child focused, this means doing what is best for the child. Maximum diversion and minimum intervention is the best way in keeping youths permanently out of the YJS. The more you bring children into the YJS the more difficult it is to escape (McAra 2017).37 This approach includes addressing the issues that lead to youths committing 33

Drakeford, M., 2009. Children first, offenders second: youth justice in a devolved Wales. Criminal Justice Matters, 78(1), pp.8-9. 34 Case, S. and Haines, K., 2020. Abolishing Youth Justice Systems: Children First, Offenders Nowhere. Youth Justice, 21(1), pp.3-17. 35 Sharratt, T., 1993. James Bulger 'battered with bricks'. The Guardian,. 36 Farrington, D. P. (2006). Family Background and Psychopathy. In C. J. Patrick (Ed.), Handbook of psychopathy (pp. 229–250). 37 Liebling, A., Maruna, S. and McAra, L., n.d. The Oxford handbook of criminology.

crime. It involves tackling poverty and promoting a wide social justice agenda as key to reduce crime and create safer communities (McAra and McVie 2015).38 Some characteristics of youth offenders in England in Wales include: 25% special needs, 15% excluded from school, 41% regularly truanting, 42% under-achieving at school, over 50% used cannabis and 9% risk of self-harm (Morgan 2009).39 Furthermore, children in care who enter the justice system are 7x more likely to be incarcerated than those not in care (Day et al 2020).40 A diversionary approach aims to address these characteristics, thus keeping youths out of the system and resolving the issues. Diversion also has a positive effect on reducing recidivism (Wilson and Hoge 2013).41 A child centred approach would encourage diversion all the way through the YJS thus being more meaningful for the child to keep them out of the system and legitimate in basing the system upon evidence which tells us that it is hard to escape the YJS once in it. Furthermore, many youth offenders are not life persistent offenders but rather adolescent limited and more likely to become ‘tomorrow’s new father’ (McNeil et al 2012) and thus this diversionary approach is more meaningful reflecting the reality that most youth offenders grow out of crime and thus the best approach is to keep them away from the criminal justice system (CJS) rather than trapping them in it.42 2. Education Once a young person is involved in the youth justice system, one of the main focuses should be education. We know that many of those involved in the YJS face issues within the education system (42% under achieving at school (Morgan 2009)) and thus one way to tackle this therefore is to ensure they receive a satisfactory education leading them away from a life of crime.43 38

McAra, L., & McVie, S. (2017). Developmental and life-course criminology: Innovations, impacts and applications. In A. Liebling, S. Maruna, & L. McAra (Eds.), Oxford Handbook of Criminology (6 ed.). Oxford University Press. 39 Morgan, R. and McMahon, W., 2009. First-time youth offender entrants: more smoke and mirrors. Criminal Justice Matters, 76(1), pp.10-12. 40 Her Majesty's Inspectorate of Probation, 2021. Experiences and pathways of children in care in the youth justice system. 41 Wilson, H. and Hoge, R., 2012. The Effect of Youth Diversion Programs on Recidivism. Criminal Justice and Behavior, 40(5), pp.497-518. 42 McNeil, J., 2012. Trans Mental Health Study. 43 Morgan, R. and McMahon, W., 2009. First-time youth offender entrants: more smoke and mirrors. Criminal Justice Matters, 76(1), pp.10-12.

Education is the way in which youths will be diverted from crime, gaining qualifications and skills for employment and understanding the importance of individual responsibility and self-discipline and respect (MOJ/DOE 2013).44 Oppose to youth prisons there should be secure schools (Taylor 2016)45 directly solving why many youths enter the YJS and therefore being meaningful reflecting that today’s offender is tomorrows citizen (McNeil et al 2012) so we should invest in them through education.46 Education should not only be at the heart of custody (Taylor), but the whole youth justice system since youths are maturing until their mid 20s.47 3. Problem Solving The YJS should also aim to solve issues that youths committing crime face, to prevent them from entering the YJS or re-entering it. This is enacted in Wales with the child first offender second approach through the Swansea Bureau Initiative.48 They aim to divert young people from the CJS and also support young people and their families with services to meet their needs. This includes assistance with housing, help with drug and alcohol misuse, mental health support etc. By aiming to problem solve the YJS has an approach of collective responsibility therefore involving more than just the police and the courts but also social services thus providing meaningful support to the youth aiming to help them oppose to primarily punish. In Leeds, the local authority aim to prevent the number of children going into care instead focusing in supporting families (review of Youth Justice System 2016).49 This is therefore meaningful and legitimate as family issues is one of the risk factors of offending (Farrington 2006).50

Ministry of Justice, 2013. Transforming Youth Custody Putting education at the heart of detention. Ministry of Justice, 2016. Review of the Youth Justice System in England and Wales. 46 McNeil, J., 2012. Trans Mental Health Study. 47 Ministry of Justice, 2016. Review of the Youth Justice System in England and Wales. 48 Haines, K., Case, S., Davies, K. and Charles, A., 2013. The Swansea Bureau: A model of diversion from the Youth Justice System. International Journal of Law, Crime and Justice, 41(2), pp.167-187. 49 Ministry of Justice, 2016. Review of the Youth Justice System in England and Wales. 50 Farrington, D. P., Ttofi, M., & Piquero, A. R. (2016). Risk, promotive, and protective factors in youth offending: Results from the Cambridge study in delinquent development. Journal of Criminal Justice, 45 63-70. 45

Conclusion Thus, a YJS should be child focused aiming to address the issues that these youths face and keeping them away from the CJS. This will address the complex and volatile nature of the system ensuring it remains focused on helping youths oppose to reacting to public outrage. One main criticism of this is that the Government will respond to the public reactions with political motivations. Furthermore, the reality of implementing such an approach raises financial issues. It is therefore the duty of the Government to promote the spread of accurate evidence regarding youth offending oppose to exaggeration by the media and should prioritise supporting youths and their families which may be economically viable in the future through diverting people from the CJS.

'The liability of public authorities in negligence continues to be a problematic area of the law. Some of the difficulties have been caused by the adoption by the courts of unnecessary and unworkable tests... Recent cases have helpfully continued the process of removing these special rules, leaving matters to be dealt with by the ordinary principles of negligence.... However, the cases remain difficult and the outcomes can still give rise to debate and disagreement. Insofar as there is a good case for extending the range of situations in which compensation is available in respect of the careless or unlawful acts of public authorities, it would be better to develop ex gratia schemes and the provision of remedies through ombudsmen than to extend the law of tort'. (Stephen Bailey, 2018). By Lily Young The liability of public authorities is a problematic area of law due to inconsistencies in applying ‘ordinary principles of negligence’ for omissions and failures. Per Lord Reed in Robinson v Chief Constable of West Yorkshire, ‘public authorities, like private individuals and bodies, are generally under no duty of care to prevent the occurrence of harm’.51 Whilst some cases have adopted the ‘uniform approach’ by holding public authorities equally as accountable as private individuals (McBride 2016), others have adopted the more nuanced ‘policy approach’.52 I will argue the latter, though giving more preferable outcomes, is overcomplicated. Instead, the law of tort’s protection can be extended by simply presuming public authorities have a positive assumption of responsibility toward claimants (one of the two ‘exceptions’ to the exclusion of negligence liability in cases of pure omissions). The liability of public bodies in negligence can be treated the same as private parties, but often two different approaches are taken by the court. First is the ‘uniform approach’ outlined by McBride.53 Whether or not there is a duty of care is determined by asking if under the same circumstances, a private person would have owed the claimant a duty of care to save them from harm. This approach was used to establish a duty of care in Kane v New Forest DC, where the council created an unsafe footpath which crossed a main road at a 51

[2018] UKSC 4 McBride, Nicholas, Michael and the Future of Tort Law (February 1, 2016). (2016) Journal of Professional Negligence 14, University of Cambridge Faculty of Law Research Paper No. 36/2017 53 McBride, Nicholas, Michael and the Future of Tort Law (February 1, 2016). (2016) Journal of Professional Negligence 14, University of Cambridge Faculty of Law Research Paper No. 36/2017 52

bend and failed to put up mirrors.54 This reasoning also prevailed in East Suffolk Rivers Catchment Board v Kent: if the neighbour did not owe a duty of care to prevent flooding, then neither did the Rivers Catchment Board.55 75 years after the East Suffolk case, the majority of the Supreme Court used the uniform approach to conclude that the police did not assume responsibility for a caller’s safety in a case of pure omission (Michael v Chief Constable of South Wales Police).56 Per Lord Toulson, although the principle of pure omission has been ‘worked out for the most part in cases involving private litigants [it is] equally applicable where D is a public body’. The assumption of responsibility, on the facts of the case, was discussed in just one of Toulson’s 140 paragraph majority speech. If a neighbour who heard Ms Michael being threatened did not owe her a duty of care to assist her, then neither did the police. The police were neither in a position of control over the ex-partner, nor had there been any assumption of responsibility toward the claimant. Under the ‘ordinary principles of negligence’ then, the law offers Ms Michaels no protection. However, turning to the policy approach, it is clear the claim should not have been struck out. It is difficult to find any policy reason why the police should not have owed a duty of care. Satisfying both tests in Anns v Merton LBC57 and Caparo v Dickman58, the damage was foreseeable (mistreating a cry for help could lead to death), there was a sufficient relationship of proximity (999 caller and Police) and it would be reasonable to impose a duty of care. Nonetheless, Michael59 is now the precedent and thus we can expect courts to follow the uniform approach when determining the liability of public authorities. I disagree that this is ‘helpful’, despite its straightforward nature. The defences for the uniform approach, and the omissions principle at large, are flawed. First, the omissions principle is said to promote liberty. Per Lord Hoffmann in Stovin v Wise ‘… it is less of an invasion of an individual’s freedom for the law to require him to consider the safety of others in his

[2001] EWCA Civ 878 [1940] UKHL 3 56 [2015] UKSC 2 55

[1978] AC 728 [1990] 2 AC 605 59 [2015] UKSC 2 58

actions than to impose upon him a duty to rescue or protect.’60 It is, as Howarth (2018) describes, a ‘rule against compulsory altruism and arbitrariness’.61 However, this is a problematic justification in the case of public authorities. It is not always the case that, in clearly defined circumstances (such as the statutes delegating power to the police), requiring a positive act is more onerous and invasive than ‘the corresponding abstention’ (Tofaris and Steel 2016).62 Honoré (1991) gives the example of litter, where ‘... the trouble involved in disposing of a wrapper neatly in a bin is much the same as the trouble involved in picking a wrapper up’.63 More fundamentally, the freedom of a public authority to fail to fulfil their constitutional function is entirely separate to the ‘intrinsic value’ of a private individual to live their life as they see fit. The ‘why pick on me?’ argument (see Lord Hoffmann in Stovin v Wise) cannot apply to public authorities where they have been specifically tasked and funded by statute or otherwise to prevent public harm.64 Other than reasonably protecting herself, the law obliges citizens to entrust their safety in the police. They are ‘the specialist repositories for the state’s monopolisation of legitimate force in its territory’ (Reiner 2010).65 Further, whilst limiting liability for pure omissions may encourage self-sufficiency and discourage overreliance on the state, many claimants may not be able to do so due to their age (X (Minors) v Bedfordshire CC)66, financial background (Mitchell v Glasgow)67, disability, or all three (CN v Poole).68 Third, defenders of the uniform approach argue the threat of legal action may prevent public bodies from fulfilling their duty, or distort priorities to reflect the risk of paying damages than meeting public needs. Whilst this may be adequate to protect soldiers in the ‘heat of the battle’ in a warzone (Mulcahy v Ministry of Defence 1996),69 this cannot apply to emergency services under ordinary circumstances. First, the tort of negligence holds private and public 60

[1996] UKHL 15 Howarth, D, The Place of Tort Law in the Public Transport System: The Case of the British Railway, Journal of European Tort Law 9(2):191-225. 62 Tofaris, S., & Steel, S. (2016). NEGLIGENCE LIABILITY FOR OMISSIONS AND THE POLICE. The Cambridge Law Journal, 75(1), 128-157. 63 A.M. Honoré, ‘Are Omissions Less Culpable?’ in P. Cane and J. Stapleton (eds), Essays for Patrick Atiyah (1991), pp. 31 ff. 64 [1996] UKHL 15 65 Robert Reiner (2010) THE POLITICS OF THE POLICE (4th edition) Oxford University Press. 66 [1995] 2 AC 633 67 [2009] UKHL 11 68 [2019] UKSC 25 69 [1996] EWCA Civ 1323 61

bodies to account, and thus improve their performance. Often, the real reason why many sue ‘is the desire for a proper investigation into what went wrong, with the possibility of a public condemnation at the end’ (Spencer 200970; see Hill [1989] A.C. 53, 64).71 Internal investigations ‘lack the appearance of independence that judicial scrutiny has’ (Tofaris and Steel 2016),72 so tort provides a public and impartial forum. It is not clear the proposed ex gratia schemes and inclusion of ombudsmen would do this. Per Lady Hale in Michael, ‘it is difficult to see how [allowing greater liability] could make the task of policing any more difficult than it already is.73 It might conceivably, however, lead to some much-needed improvements in their response to threats of serious domestic abuse’ [198]. The police, and other public bodies, can and are held accountable in other areas of the law, but these do not undermine the vindicatory role of tort action and the need to right legal wrongs. Finally, any concerns of justiciability are irrelevant when determining duty of care. It has always been the role of the courts to determine the limits of delegated power, so this should extend to the responsibilities of those bodies too. Questions of standards and policy are better addressed under breach of duty and causation. Instead, we should reconsider how the existing law could be adapted to better protect citizens from the failings of public authorities. Although McBride (2016)’s more general policy approach is attractive, it is also quite radical.74 Instead of assuming any public body owes a duty of care unless there is public policy to suggest otherwise, a more incremental approach would be to assume a public body has assumed a duty of care unless evidenced otherwise. This presumption can be rebutted without delving into matters of public policy which can be unpredictable and controversial and fits nicely into the recognised dual categories where a duty of affirmative action may exist. These are ‘D was in a position of control over T’ or where ‘D assumes a positive responsibility to safeguard C’ (per Toulson in Michael).75 Though the outcome may be the same, my construction could allow protection to slip in ‘through 70

Spencer, J. (1989). Public Nuisance—A Critical Examination. The Cambridge Law Journal, 48(1), 55-84. doi:10.1017/S0008197300108347 [1989] AC 53, 64 72 Tofaris, S., & Steel, S. (2016). NEGLIGENCE LIABILITY FOR OMISSIONS AND THE POLICE. The Cambridge Law Journal, 75(1), 128-157. 73 [2015] UKSC 2 74 McBride, Nicholas, Michael and the Future of Tort Law (February 1, 2016). (2016) Journal of Professional Negligence 14, University of Cambridge Faculty of Law Research Paper No. 36/2017 75 [2015] UKSC 2 71

the back door’. Thus this reformulation of liability for public bodies is preferable to that of McBride’s and should be adopted. Thus the most problematic area of tort law has been unsatisfactorily resolved. Under Michael, and going forward, we can sadly expect the liability of public bodies for omissions to match the liability of private parties (see CN v Poole BC).76 After 75 years of conflicting litigation it appears there is finally an answer to this question. Despite the Supreme Court’s reasoning however, the uniform approach to public liability should not be supported. Though McBride’s construction of a ‘policy approach’ is appealing, the law can more simply be adapted by imputing that public bodies have assumed a responsibility to safeguard unless shown otherwise. The fact that the court unanimously agreed that the family in Michael is able to pursue its ECHR art 2 claim means that public law clearly asks different questions to tort in regard to the responsibility of the state. Thus one cannot be a substitute for the other and we must allow tort to evolve; tort can compensate victims if the courts will let it.

[2019] UKSC 25

‘Recent case law supports a wide approach to the Land Registration Act’s alteration provisions. This is regrettable because it has the potential to undermine the promise of title by registration, as well as the Act’s priority promise. In light of this, it must be questioned whether we should bother to retain a land registration system at all.’ (Cambridge Law Tripos) By Henry Steele The statement’s objective characterisation of the approach taken to the LRA’s alteration provisions is plausible - the tenor of recent authority is indicative of a ‘wide approach’. Furthermore, it is credible to suggest that this has the capacity to undermine the referenced promises. However, having a ‘land registration system’ remains valuable, and the wide approach to alteration is defensible. Therefore, the issue is not whether we should have ‘a land registration system at all’, but how we should reformulate our current one. Hypothetical for reference: (i)

A is our initial registered interest-holder. B’s registration is then procured without A’s consent and is mistaken. However, B acts on his erroneous title in order to dispose an interest to C, who registers it.

‘A very wide reach’? Admittedly, there is some of support for the argument that the LRA’s alteration provisions have a relatively narrow reach. This view begins with premise that s.58 of the LRA operates to guarantee B’s title upon registration, subject to the alteration provisions (s.65 and schedule 4 LRA).77 However, because he also has ‘owner’s powers’ (s. 23 and s. 26 LRA) post registration, the guarantee enables him to convey his interest as an owner. Therefore, C is able to acquire it unencumbered by the ‘purchaser-friendly’ s.29 priority promise, with his title being guaranteed upon registration. This gives effect to the Law Commission’s view that the LRA would guarantee ‘title by registration’.78 Accordingly, a narrow view of the alteration provisions gives 77 78

Land Registration Act 2002 Law Commission, Updating the Land Registration Act 2002, 2018, Law Com No 380

effect to this understanding by heightening protection of C’s title, as seen by the approach taken to ‘mistake’ in Stewart v Lancashire Mortgage Corporation.79 However, the thrust of the statement’s characterisation remains plausible given the tenor of recent case law. As Goymour has persuasively illustrated, several recent approaches to the alteration provisions suggest that the narrow view has fallen out of favour.80 Several approaches illustrate this point. First, given that a significant gateway for engaging the alteration/rectification provisions is the meaning of ‘mistake’ (Sch.4, para. 1(a); Sch.4, para 2(1)(a)),81 this has been the epicentre of much of the wide approach. For example, some cases suggest ‘correcting a mistake’ entails correcting its consequences, thereby capturing C’s registration (Ajibade v Bank of Scotland).82 Alternatively, C’s mistake could be analysed as being ‘part and parcel’ of B’s erroneous registration (per Lord Neuberger in Barclays Bank v Guy (No.2)).83 A mistake in an early transaction can render later transactions of the same title mistaken also, as indicated by Gold Harp v Macleod84 and the reasoning in Bakrania v Lloyds Bank (informed by these authorities, albeit not formally binding).85 Finally, securing alteration can be relatively easier if one invokes a ‘right to rectify’. This can potentially bind C as an overriding interest under schedule 3, para 2 LRA (Swift 1st; 86 Crawley v Gudipati)87, thereby burdening his land and indicating that sch.4, para 1(b) is not engaged (Re Chowood).88 Thus, whilst the range of authorities lends some support to Lees’ argument that the cases are in tension here, a ‘wide view’ of the alteration provisions is in the ascendency, giving force to the statement

[2010] EWLandRA 2009_0086 Goymour, A., 2013. MISTAKEN REGISTRATIONS OF LAND: EXPLODING THE MYTH OF “TITLE BY REGISTRATION”. The Cambridge Law Journal, 72(3), pp.617-650. 81 Land Registration Act 2002 82 [2008] EWLandRA 2006-0163 83 [2010] EWCA Civ 1396 84 [2014] EWCA Civ 1084 85 [2017] UKFTT 364 (PC) 86 [2015] 1 Ch 602 87 [2010] EWLandRA 2008-0602 88 [1933] Ch 574 80

Undermining promises: In addition, the suggestion that this wide approach has undermined the two promises referenced by the statement is a plausible conclusion. A wide approach to schedule 4’s alteration provisions does indeed undercut the promise of title by registration. This promise reflects the idea that registration is sufficient to confer title on C, and is reflected by section 58 of the LRA, and the reasoning in Swift 1st v Chief Land Registrar.89 It is also supported by the Law Commission’s initial understanding that the LRA 2002 would usher in a system of title by registration.90 Although Cooper has suggested that there is nothing in the Act which formally requires a narrow approach to schedule 4 as a result of this, this does not negate the suggestion that the register ostensibly promises title by registration (Lees).91 Accordingly, the wide approach risks undermining this because of how it undercuts C’s ability to trust that B had a robust title which he could convey to him, and correspondingly increases the likelihood that he is at risk of alteration proceedings. Furthermore, the force of the wide approach can also undermine the ‘priority promise’ made by the LRA. Section 29 of the LRA indicates that C, as a purchaser of a registered estate for valuable consideration, will take the land unencumbered by any unprotected interests, or interests which do not override via Sch.3, paras 1 – 3. However, Underhill LJ’s reasoning in Gold Harp strongly suggests that, if A can establish the necessary elements of alteration/rectification, his title or interest can be reinstated in a manner which gives it prospective priority over C’s. Similarly, if a right to seek alteration is recognised as proprietary, it can avoid being postponed to C if the holder is in reasonably discoverable actual occupation, although this operates through Sch.3, para 2. Moving forward: Nevertheless, it does not necessarily follow that we must question the need of even having a land registration system ‘at all’. The more important issue is our understanding of how our current system should operate. 89

[2015] 1 Ch 602 Law Commission, Updating the Land Registration Act 2002, 2018, Law Com No 380 91 Cooper, S, Equity and Unregistered Land Rights in Commonwealth Registration Systems, 2003. 90

Several concerns indicate that the current approach is undesirable. First, there is the lingering issue of authority, with Lees highlighting how the multiplicity of solutions to the problem at the heart of our hypothetical is conducive to uncertainty in an area which ought to highly regard the value of certainty. Second, there is an issue of transparency and coherence. As Goymour argues, the Act’s main body is making two promises which are being undercut in practice by the operation of the less alteration prominent provisions, which lack clearly defined parameters.92 This is problematic because it undercuts a purchaser’s ability to have confidence in the register, with it becoming more akin to a record of rights, rather than a source guaranteeing them. However, these problems are not sufficient reasons to consider a land registration system valueless. It must be remembered that, outside this context, having a system of land registration does more to aid market confidence and performance than not having one (Law Comm (2018)).93 Furthermore, the wide approach to the alteration provisions is not entirely undesirable. The Act never promised complete indefeasibility and some potential for rectification to change priorities is necessary if rectification is to have meaning (per Dixon).94 As Cooper has argued, it also avoids the pitfalls of the narrower approaches, which would heavily prioritise the purchaser via a narrow view of mistake, thereby causing one to lose a potentially long-standing attachment to their home with even the mere consolation of an indemnity potentially curtailed by narrowly construing the ambit of ‘mistake’.95 Therefore, upon balancing these considerations, the better conclusion is that the value of our current system can be enhanced by reform, not removal. First, if the preference for a wider approach to alteration is in the ascendancy, then it would be better to transparently acknowledge this in a manner similar to the path pursued in Scotland. This would involve clearly rejecting the narrower view by prima facie rooting title in the general law, subject to legislative alterations in registration scenarios, perhaps involving C acquiring title after he has been in possession for a certain period of time. Second, we should remove specific avenues pursued by the wider approach. The most culpable is 92

Goymour, A., 2013. MISTAKEN REGISTRATIONS OF LAND: EXPLODING THE MYTH OF “TITLE BY REGISTRATION”. The Cambridge Law Journal, 72(3), pp.617-650. Law Commission, Updating the Land Registration Act 2002, 2018, Law Com No 380 94 Dixon, Martin, The Reform of Property Law and the Land Registration Act 2002: a Risk Assessment, 2003 95 Cooper, S, Equity and Unregistered Land Rights in Commonwealth Registration Systems, 2003. 93

the “Malory 2” suggestion that the right to rectify the register can take effect as an overriding interest (Swift 1st;96 Bakrania97). Not only is it fundamentally unclear how this can be a ‘right’, it also risks defeating the policy of the LRA by burdening a purchaser in a manner which deprives them of an indemnity. Swift 1st’s ‘solution’ to this issue was premised on sch.8, para 1(2)(b) LRA and is therefore of limited applicability (per Dixon).98 Thus, the Law Commission was right to support the removal of this avenue. Conclusion: To summarise, the statement’s objective assessment of the current law is plausible, albeit in need of some qualification. It is correct to say that the implications of this can threaten the two promises referenced. However, both a system of land registration and a wide approach to the alteration provisions are desirable, and can be reconciled by reforming the current one, rather than abolishing it.

[2015] 1 Ch 602 [2017] UKFTT 364 (PC) 98 Dixon, Martin, The Reform of Property Law and the Land Registration Act 2002: a Risk Assessment, 2003 97

‘Regardless of whether Lady Hale was correct to suggest in 2012 that the UK was a federal state, the undeniable fact is that, today, it most certainly is not.’ By Muhammad Syed The quote is correct. The UK has never been and is presently not a federal state. I will draw this conclusion by outlining three features of federalism, taken from states like Germany and the US, and demonstrate that the constitutional arrangements of the UK do not share any of them. Division of Sovereignty For a state to be federal, its sovereignty must be shared between different levels of government so that “each government is legally independent within its own sphere” (Wheare).99 This starkly contrasts the basis of the UK constitution which presupposes that sovereignty ultimately lies with the UK Parliament. The courts have not shied away from upholding this central tenet. In AXA, the key question for the Supreme Court was whether Acts of the Scottish Parliament were amenable to judicial review, and if so, on what grounds.100 Although the court unanimously held that they could not be subject to judicial review, Lord Hope highlighted that constraints were already placed on the Scottish Parliament. He affirmed that the Scottish Parliament receives its authority from the UK Parliament, so it does not enjoy sovereignty. Its powers are limited by s.29(1) and s.29(2)(d) of the Scotland Act 1998. These statutes ensure that an Act is not law if it falls outside its legislative competence, and that legislation must be compatible with any of the Convention rights. So the reason for their non-intervention was that adequate provisions already existed to ensure sovereignty ultimately lies with the UK Parliament. That said, when the Scotland Act was amended to politically embed the position of the devolved states, the constitutional arrangements appeared to move towards a federal character. This was because s.63(a) firmly placed the Scottish Parliament and Government as permanent components of the UK’s 99

Wheare, Kenneth C, Federalism in the History of Thought, 1991. AXA General Insurance Limited and others v The Lord Advocate and others [2011] UKSC 46

100

constitutional arrangements while s.28(8) gave statutory recognition to the Sewel Convention. Both these statutes seemed to confer greater sovereignty to the devolved states, albeit only to a superficial level. Firstly, the use of ‘permanent’ in s.63(a) was a misnomer because, as the House of Lords Constitution Committee reports, Parliament can still abolish the Scottish Parliament under specific conditions, such as the holding of a referendum.101 This preserves parliamentary sovereignty on a theoretical and practical level by providing a route for Parliament to restore its sovereign power if it so wishes. Secondly, the Supreme Court in Miller (No 1) unanimously held that consent was not needed from the devolved legislatures before initiating proceedings to leave the EU, dismissing the relevance of s.28(8) of the Scotland Act and s.1(1) of the Northern Ireland Act.102 On the argument that the Northern Ireland Act was made under the assumption that the UK would be a member of the EU, this was not a binding promise that its membership in the EU was eternal. The only requirement under s.1(1) concerned a referendum for Northern Ireland to gain independence from the UK; it did not state that consent of Northern Ireland was needed to leave the UK. The Supreme Court also expressed reluctance to enforce the Sewel Convention despite its statutory status. They held that it was a political convention which Parliament refrained from converting into a legal rule justiciable by the courts. As Elliott observes, this reveals s.28(8) to be “nothing more than a political token in legislative garb” with no real sense of enforcement or meaning.103 This reaffirms that power is centralised in Westminster and is in no way divided. Written constitution The second feature is that federal states typically have a written constitution that demarcates the parameters in which each level of government is allowed to operate in. Most importantly, an implication of this characteristic is that provisions in the constitution cannot be changed by one level of government. 101

House of Lord Constitution Committee, Scotland Bill- Sixth Report, 2015 [2017] UKSC 5 103 Elliott, Mark, Analysis/The Supreme Court/s Judgement in Miller, Public Law For Everyone, 2017. 102

It requires consent from all levels of government. Two points merit attention on this matter. Firstly, the UK does not have a codified constitution. Instead, its constitution is made up of the common law, Acts of Parliament, constitutional principles and conventions. Secondly, this ties in closely with the fact that sovereignty lies with Westminster. For this reason, consequential statutes like the EU Withdrawal Act 2018 and the EU Withdrawal (Agreement) Act 2020 could be passed without consent from the devolved legislatures. In response to the 2018 Act, the Scottish Parliament tried to pass a Continuity Bill, with s.17 providing that subordinate legislation made by Westminster required the consent of the Scottish Ministers if it concerned devolved matters. The Supreme Court held that it was in breach of s.29(2)(c) of the Scotland Act, ruling that s.17 was a nullity. Lady Hale, departing from her earlier stance that the UK is a federal state, affirmed that s.17 was contrary to s.28(7) of the Scotland Act which highlights “the essence of devolution”.104 This preserves the power of Westminster. Same levels of autonomy The final feature requires every constituent nation to possess the same rights autonomy at each level of government. However, the asymmetrical nature of the devolved arrangements means that there is a difference in powers conferred upon each state depending on the histories and attitudes of the constituent nations. The unwritten nature of the UK constitution facilitates any changes to their varying levels of autonomy to be made. For example, the Scotland Act 1998 conferred powers to the Scottish Parliament to legislate independently. It also outlined the reserved matters which fall outside the competence of the devolved legislature. This initially included fiscal and monetary policies but following the Scotland Act 2016, a greater degree of economic power over taxation and welfare payments were devolved. 104

Lady Hale, President of the Supreme Court, Devolution and The Supreme Court- 20 Years On, Scottish Public Law Group 2018, 2018

Meanwhile, the process of devolution in Wales was strikingly different. For starters, the Government of Wales Act 1998 implemented a scheme of “executive devolution”, where powers over primary legislation and taxation were not awarded (Tomkins and Turpin).105 The elected Welsh Assembly was only permitted to make delegated or secondary legislation until 2007, when a primary law-making power was granted on a limited basis. It was only after the 2011 referendum that this power was conferred completely. Lastly, the aim of the Northern Ireland Act 1998 was to give legal effect to the provisions of the Belfast Agreement. The arrangement of the Northern Ireland Executive merits particular attention. In order to gain universal support from both sides of the political spectrum, the First Minister is to be nominated by the largest political party while the Deputy First Minister is nominated by the second largest political party. This same model does not apply to Wales or Scotland. In addition, England’s precarious position in relation to devolution must be considered because of the absence of devolution in England. This is animated by the West Lothian question, where MPs of the devolved nations can decide on laws affecting English matters in the UK Parliament while the same scope of intervention is unavailable to MPs of English constituencies on devolved matters. This imbalance of power is a further illustration that the UK is not a federal state. Although the government has introduced ‘English Votes for English Laws (EVEL)’ as a potential solution, concerns have been raised over the dual function of Westminster as both the UK Parliament and a de facto English legislature. Conclusion In sum, the devolved arrangements of the UK means that it cannot be considered a federal state. Indeed, the fact that devolution is a “process, not an event” (Davies) raises questions over the end of devolution (Tierney), with some even arguing that it is “a road with no logical stopping point short of independence”. However, the current arrangements of the UK are entirely irreconcilable with the general features of federalism. 105

Young, A., n.d. Turpin & Tomkins' British government and the constitution.

The Myth of “Judicial Overreach” By Abi Cooper The capacity to hold the government to account is essential to the principle of democracy, yet the government continuously puts forward the idea that judicial scrutiny exceeds the court’s powers and undermines parliamentary sovereignty. Judicial overreach refers to the accusation that the courts overstep their constitutional sphere of influence, by engaging in areas that are “political” and should instead be resolved by political debate. Advocates of judicial overreach argue that because of a “decline in politics”, an “empire of law” is stepping in to fill the space that politics once governed.106 The “empire” represents the supposed undemocratic and everexpanding nature of the courts.107 Proponents of this view, such as Jonathan Sumption, argue that the courts exceed their sphere of influence by taking over “political issues” which should be left to Parliament to resolve.108 Whilst it is reasonable to suggest that “law’s empire” has expanded in recent years, with influential cases such as Privacy International and the Miller cases of 2016 and 2019,109 the idea of judicial overreach suggests that the courts are infringing upon the separation of powers, by involving themselves in political debate, which is the role of Parliament and the executive. However, I would instead argue that because the boundary between politics and law is so often blurred and in some circumstances, intertwined, the judiciary does not overstep but rather answers the legal questions that political issues raise. Politics and the Law Judges only operate on matters of law. They answer the legal questions that political debate cannot, providing the legal expertise that is required to answer 106

J Sumption, Trials of the State: Law and the Decline of Politics (Profile Books, London 2019). Ibid. 108 Ibid. 109 R (on the application of Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 : R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) [2017] UKSC 5 : R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) [2019] UKSC 41: J Sumption, Trials of the State: Law and the Decline of Politics (Profile Books, London 2019) 107

the questions which have previously been unanswerable. However, as policy and law are so closely intertwined, issues that are brought to court often contain a political tint.110 Defining the “political” and the “legal” as separate spheres and trying to put them in distinct categories is incredibly misleading. There is a clear crossover between the two, which can be seen in the 2016 Miller case.111 Some may argue this case is a clear example of judicial overreach: the courts answer and involve themselves in a political issue that should have been left to Parliament to decide. From a first read, this case asks a seemingly political question: can the Prime Minister take the UK out of the EU? However, upon a closer examination, a clear legal query is present: Can the executive bypass the legislature by leaving the EU? Whilst Brexit is such a divisive and controversial issue in this case, the courts neither involved their political opinions nor engaged in political debate. They simply answered the legal question raised. Were they not to get involved, the UK’s constitution would have been left at risk, as the executive's decisions clearly undermined the separation of powers and parliamentary sovereignty. Without the court's oversight, Parliament would have been ignored by the Executive. Furthermore, if the courts were to ignore issues which had political dimensions, we would risk complex legal problems being solved by those without any legal experience in Parliament, whilst also reducing the number of legal questions that could be solved by the judiciary and in turn weakening the supervisory function of the courts. Alternatively, there are many examples where political issues that don’t require legal answers are brought to court and the courts respond accordingly, leaving the answer to be decided by political discourse. For instance, In R (Nicklinson) v. The Ministry of Justice, a majority of justices held that it would be inappropriate for a court to make a decision on the matter before giving Parliament the opportunity to consider their position.112 Lord Neuberger concluded: “[E]ven under our constitutional settlement, which acknowledges 110

TRS Allan, ‘Human Rights and Judicial Review: A Critique of “Due Deference” [2006] 65 (3) Cambridge Law Journal 671-695. 111 R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) [2017] UKSC 5. 112 R (on the application of Nicklinson and another) (AP) (Appellants) v Ministry of Justice (Respondent) [2014] UKSC 38.

parliamentary supremacy, and has no written constitution, it is, in principle, open to a domestic court to consider whether section 2 infringes article 8”.113 Despite this, a majority felt that the question is one that Parliament is in a much better position than the courts to assess, emphasising how the courts are aware of the boundary between the political and the legal spheres, and respect Parliament's position as sovereign, to answer political questions. This is further evidenced by Lord Reed in a recent response to the Prime Minister’s proposals for a constitution commission to examine the role of judicial review where he states “Judges are very well aware of the risk of challenges being brought in what are political rather than legal grounds. They are repelling them and are careful to avoid straying into what are genuine political matters. When this is a matter that is to be considered it should not start from the premise that judges are eager to pronounce on political issues. The true position is actually quite the opposite”.114 Therefore, judges can, and do, make the distinction between the cases that require a political answer that they are unable to give and those of which require a legal answer which it is within their scope of power to address. The “Empire of the law” Proponents of judicial overreach argue that the judiciary has unjustly expanded in recent years and are encroaching on political territory.115 Jonathan Sumption argues in the 2019 BBC Reith lectures that the expanding “empire of law” has enlarged to fill the void left by the “decline of politics”, ultimately undermining democracy.116 Under Sumption’s democratic model, Parliament is the necessary moderating arena.117 He argues that the governing party, given their power by the people, has its legislation legitimized through it being passed by Parliament who’s role is to “accommodate the divergent interests and opinions of citizens”.118 Arguing against the use of referenda and other 113

R (on the application of Nicklinson and another) (AP) (Appellants) v Ministry of Justice (Respondent) [2014] UKSC 38 114 John Hyde, ‘Lord Reed denies judicial over-reach’ (The Law Society Gazette, 4 march 2004) <https://www.lawgazette.co.uk/law/lord-reed-denies-judicial-over-reach/5103324.article> 115 J Sumption, Trials of the State: Law and the Decline of Politics (Profile Books, London 2019) 116 Ibid. 117 Nicholas Langen, ‘Jonathan Sumption’s Reith Lectures: are the courts too willing to trespass on the terrain of politics?’ (The Justice Gap, 5 June 2019) <https://www.thejusticegap.com/jonathan-sumptionsreith-lectures-are-the-courts-too-willing-to-trespass-on-terrain-of-politics/> 118 J Sumption, Trials of the State: Law and the Decline of Politics (Profile Books, London 2019).

forms of direct democracy that reduce politics to “a zero-sum game”, and more in favour of political discourse that requires debate and compromise.119 In the 2019 Reith lectures, Sumption is arguably less concerned with political discourse and more concerned with the way in which he believes the courts have usurped the political. Declaring that the court’s trespassing on the political not only undermines the power of Parliament but as a result the power of the people, threatening democracy altogether. Sumption’s argument is, however, facile and fails to consider how easy it is for the executive to go unchecked. Parliament has very few ways in which it can hold ministers to account for their decisions. Sumption fails to recognise the importance of parliamentary scrutiny and the role that the courts play in holding the government accountable. The use of first past the post in the UK has made it increasingly easy to get legislation passed with a significant majority and even easier for the government to evade scrutiny. In order to then prevent executive overreach, the courts must be able to intervene. In the 2016 and 2019 Miller cases, the courts did not offer a political opinion but rather scrutinised and provided a check on the executive’s power.120 Without the courts, Parliament can be very easily undermined by the power of the executive. Just because the executive has “strong public support” does not mean that the court’s decision to alter these policies undermines democracy.121 Sumption suggests that the courts have long represented an unattainable higher position in society that a majority of people cannot connect with.122 Nevertheless, Sumption clearly ignores all those who are left behind by the political majority. Ultimately, it is hard to agree with Lord Sumption’s view of the everexpanding “empire of law” when the courts have done so much in recent years to curb the populist tendencies of an overly ambitious executive.123 Forcing the Executive to compromise and moderate when all other forms of scrutiny

119

Ibid. R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) [2017] UKSC 5 ; R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) [2019] UKSC 41. 121 J Sumption, Trials of the State: Law and the Decline of Politics (Profile Books, London 2019). 122 Ibid. 123 Ibid. 120

fail is not undemocratic but rather maintains and protects the UK’s constitution. The Independent Review of Administrative Law Recently the UK government has been determined to erode any form of scrutiny that could hold them to account. One of its latest being the Independent review of Administrative law (IRAL).124 The Independent Review of Administrative Law was established on the 31st of June 2020 to examine trends in Judicial review and to deliberate on any recommendations to reform.125 It was called after a pledge in the Conservative manifesto to put an end to the “abuse” of judicial review.126 The inquiry into judicial review is evidence of the Conservative government’s distaste for the separation of powers and the judiciary specifically. This was most likely sparked by the executive’s grievance when the courts overturned Prime Minister Boris Johnson’s decision to prorogue parliament in 2019. A decision that was widely contested and said to be an attempt to prevent Parliament from legislating a no-deal Brexit. The enquiry concluded that the courts do not overstep opting instead for small reforms to the process of judicial review, including changes to remedies. However, the government’s myopic view of judicial review is harmful. Judicial reviews are not only used to hold the government to account, but also to challenge decision-making and process by public bodies including local councils. It is the vulnerable people of everyday life that are affected most by these proposed reforms, not the high-level constitutional debates.127 Government scrutiny is essential to maintaining the public’s trust and confidence in decision making. The current government was elected with a significant majority and is therefore authorized to make any legislative

124

The Independent Review of Administrative Law, 2021, CP 407 Ministry of Justice, ‘Judicial Review Reform’, 2021 <https://www.gov.uk/government/consultations/judicial-review-reform> 126 ‘Conservative Manifesto 2019| Conservatives’ (Conservatives.com, 2019) <https://www.conservatives.com/our-plan> 127 ‘The Judiciary Is Not The UK Government’s Enemy’ (ft.com, 2021) <https://www.ft.com/content/cfd9285d-7bab-4954-9b4b-0170963f0590> 125

changes it sees fit, so if this is done in the right way why do they need to fear the scrutiny of the courts? Conclusion Judicial overreach would require the courts to act beyond their scope of power, but when the boundary between politics and law is so blurred and often intertwined, political issues are often brought to court. The judiciary is aware of the matters which require an answer from Parliament and those that require legal expertise. As a consequence, the notion of an “empire of law” encroaching on political territory is simply false. The government actions in enquiries about judicial review are largely a result of government losses in recent judicial review cases and the conclusions of these enquiries reflect the view that there is no need for dramatic change to the process of judicial review. Judicial review is essential to scrutinising and holding the government accountable; the process is inherent to maintaining the public’s trust. If the executive is acting within their scope of power and in accordance with the rule of law, why are they so threatened by the scrutiny of the judiciary?