Drinking games are a surprisingly large part of this student’s student life. I was once at a house party thrown by an old schoolmate. It was a really good party, my friend has a real gift for hospitality (M&S barbecue food and Tesco Value brand drinks – don’t knock it if you haven’t tried it), and around 2am we were sitting around the kitchen table generally chilin’. One of us said “let’s play the coins game”. I had no idea what this was; he goes to a different university and obviously gets out more than I do.

The Coins Game

The rules of the coins game are, initially, very simple. But that’s the interesting thing about it.

You have two coins and you take turns flipping both. There are three ways that can work out.

1. If you get 2 tails – do nothing or, 
2. 2 heads – drink (it is a drinking game, after all) or,
3. 1 head and 1 tail – make up a rule, any rule

The idea is that you will start off with a simple game that then grows in complexity and the trick is to keep track of all the rules. I never dreamed this is what I would use to talk about William Hague and Parliamentary Sovereignty.

The first rule that was created was “all vowels except ‘u’ are banned” – so effectively you could say “cuw” but not “cow” and you had to work out how to pronounce that. If you broke a rule you took a drink.

Fans of legal theory will have long since realised that I am describing a system of rules with a sanction for breach. It’s a classic example of Austinian command theory. We have invented “party law”.

Party law

The constitution of party law is simple. It’s an unwritten constitution but fundamentally it involves three rules for what you do when you toss a coin and a single sanction for breaking the rules. It is technically too simple, for reasons I’ll come to in a minute, and leaves the stability of party law dependent on the good will of the players and the simplicity of the rules created – in general the more complicated the rule the more unexpected the consequences. Carl Gardner, on Charon QC’s lawcast, said that implementing the concept of Parliamentary Sovereignty in a statutory provision will be the masterpiece at the end of a very long career for a particularly excellent drafter. Setting a clear rule that lets a legislative body do anything legislative they may ever want to do in future without stopping them doing something they may want to do in future is extremely difficult to do. “Parliament rules OK” is not going to cut it. We’re currently fine because there’s an accepted principle that Parliament can do anything it likes (although not as much anything than it used to be able to – see Mortensen v Peters).

In particular the problem for party law is that there’s no provision for the entrenchment of those rules nor limits on rule-making power.

Wait, no limits on power?

ultra vires

This is the big thing.

One of my friends made a rule – “all previous rules no longer exist”. Can he do this? Is this valid law? As a matter of theory this is completely fine under party law – if you can repeal one rule (and there’s no restriction saying that you can’t and in practice we all did repeal some rules we’d made) then you can repeal two at a time, or three or all of them. You can easily go back to the initial position.

We, briefly, split into factions that in hindsight covered quite a wide spectrum of views,. Broadly:

• The guy who proposed the rule was just annoyed at the game and how much he was being made to drink and wanted (in the kindest sense of the word) to break it. He was, as far as party law was concerned, Justice Holmes’ “bad man” and party law is weak against this person
• One of us spoke about “the point of the game”. He argued that it was a drinking game and the idea was to make up lots of rules that got people to drink a lot and that wiping out lots of rules at stroke was against the point, the purpose, of the game. A purposive approach.
• I, scenting the blood of impromptu jurisprudence debate in the water, spoke about the wording of the initial rules. I pointed out that the rule was formally valid (I actually instinctively used these words) and that it both gave the power to do it and didn’t prohibit you from doing it. A resort to formalism.
• yet another of us told us to shut up and we were subpar (this was not the word he used) chat. The host of the party cum legal symposium.

However, does “all previous rules” include the rules about tossing the coins? This didn’t come up in our discussion because the basic issue was could we make a rule to go back to the initial position or not but technically a rule is a rule under party law. There’s no formal entrenchment of the constitutional rules.

What if he had said “no one can toss a coin again?” In other words, under party law, do you have the power to break the game by making a rule that contradicts with the fundamental rules? In fact, are they fundamental in any sense other than that they were there first? Have the coin toss rules become higher law? None of us spoke about the rule making the game unplayable because, frankly, that was not in our interests as we wanted to play the game. However, what in the rules would actually stop you?

Either all rules are rules and it’s possible for a malevolent legislator(s), everyone acts unilaterally in party law, to destroy the game with either sneaky or just destructive rules or we implicitly give the initial rules higher status that we have expressed or we have implied an overlying principle of keeping the game working. That’s great but what guarantees this special role for social efficacy because it’s not certainly written down anywhere.

In reality what finally happened at the party was the mass repeal bill was torpedoed by a bloodless coup and we just played a different game instead and that’s democracy in action.

Ironically the weakness of party law is that it is too supreme. What would happen to our Parliament if we get the sovereignty provision wrong? The common law sovereignty we have right now really seems to work for us so why are we fiddling with it for short term political gain?

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The idea that the House of Lords should be elected is built on sound ideological foundations – democracy is good. I think it really is good, I just don’t see why people need multiple identical elected representatives to represent them. I think, if the second house will be made up by people voted for by the same people and arranged in the same political parties who will decide along party lines on the same legislation, this only happens because we assume we need a second house at all. Why would we? It’s exactly the same as the lower house.

I don’t want an elected House of Lords, I want a differently constituted upper house or I want us to save a bit of money by getting rid of it entirely. The whole point of the House of Lords is that it’s supposed to be able to resist the hue and cry of the masses and look at things objectively, the whole point of the House of Commons is that it’s supposed to listen to the voters.

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The Scotland Act is a fascinating piece of constitutional law and all Scots should read it — after all it’s the founding document of the fanciest named local authority of them all. The wording can be positively inspirational:

s.1(1) There shall be a Scottish Parliament
(2) One member of the Parliament shall be returned for each constituency (under the simple majority system) at an election held in the constituency.
…
(6) Be willing to trade all the days, from this day to that, for one chance, just one chance, to come back here and tell our enemies that they may take our lives but they’ll never take our freedom*

*There may only be 5 subsections in section 1, I forget.

Well, 1(1) is inspiring at least — you know exactly what the drafter is looking for there. The Act draws directly on the European Convention on Human Rights-there’s no messing about with the Human Rights Act for us Scots. Despite implementing the convention in roughly the same way as the Human Rights Act (another of the new 1997 Labour government’s constitutional reforms) it is not exactly the same in its implementation — the limitation period from the Human Rights Act was missed out. Then, the House of Lords had a look over it, pointed out that actions were unlimited with the draft and it was not corrected. We can only assume that Parliament intended it that way.

Unfortunately this beautiful act of trust in the concept of Human Rights met its natural conclusion with a man named Napier. Napier v Scottish Ministers is the early, Scottish Court of Session case, not Somerville which is the meaty, precedental House of Lords decision but Napier involves drugs and I feel that gives Napier “edginess”.

Robert Napier was locked in a cell with his cellmate of the time, a recovering heroin addict and as everyone who has watched the Scottish tourist board propaganda film “Trainspotting” heroin causes you to become constipated while it is in your system. With a regular habit you can became quite consistently constipated. There was no access to heroin in this cell. The man was no longer constipated.

A very long story (and an even longer night for Napier) later, Napier, who if I recall correctly was in the jail in connection with some fairly violent crimes and should not be considered the innocent victim of this story but nevertheless should be greatly pitied, was left in cell in a Victorian prison with no toilet, a small bucket and a recovering drug addict with diarrhea.

This grim scene, combined with other elements of the Victorian prison system (Scottish jails taught the European prison inspectors something new and they have to deal with the former Soviet bloc) lead to convincing a judge that this amounted to a violation of the pursuer’s article 3 convention rights:

No one shall be subjected to torture or inhuman or degrading treatment

Napier, as a Scottish individual, had two routes to his Convention rights the Human Rights Act and the Scotland Act, both of 1998. One allowed Napier to get damages but the other allowed him to get damages and every other person who has ever had to do their jail business into a pot could equally also, claim damages. There was no limit on how far back the cases would go because of the drafting of the Scotland Act. The Scottish Executive set aside £50 million in a liability fund and even mere to get a toilet in every jail cell as soon as possible. The oversight has been corrected -on the 18th of June 2009. 11 years after the House of Lords pointed it out while the act was still under debate.

I don’t know if you can really call that a loophole at that point, it seems more Parliament’s fault.

The Student Law Review, published by Routledge Cavendish is a publication bordering on the “terrifyingly polished” and I find it to be a very interesting read that I try to pick up whenever I can.

I’ve done a quick and rough digest of the contents of this edition, and it’s a very, very long post so I’ve added it after the break. I will be back later to fact check but right now I’m just impressed at myself for getting this typed up. These are in no way the whole articles, or indeed perfect outlines of the articles themselves, I was more interested in putting out what the publication covers instead of violating the copyright on the articles themselves:

The publication is split into sections by area of law covered and the Summer 08 edition covers :

Administrative Law

The Student Law Review provides two case reports for two very recent (this year) Canadian cases discussing the old standard question in any liberalist law school – separation of powers. In particular, the result of a challenge regarding the parole board. These cases are still wet on the page and overseas, so this is the first place that I found the reports of these cases which is very interesting.

Civil Liberties and Human Rights

The article on page 5 is particularly interesting – a report written by Professor Helen Fenwick from the Human Rights Centre at the University of Durham – about the viability of blasphemy law. It’s these kind of interesting, unexpected questions which makes the SLR so interesting to me. The article notes the issues arising from the (designed entirely to protect Anglican sensibilities) details of the existing and how this fits into the modern context, after it was resurrected on behalf of Mary Whitehouse of all people in response to the Gay News’ “The Love that dares to speak its name”, with other faiths and also the limitations it naturally places on freedom of expression and therefore – the European Convention on Human Rights.

Civil Litigation

This is an expose on the Limitation Act 1980 and the effect that this has in cases of sexual abuse – where allegations may be made with very little proof but yet there is a distinct, in my opinion, public interest in seeing a prosecution, however, this may be offset by the fact that defendants may have to spend many thousands of pounds defending themselves from allegationns for which there is nearly no evidence to be discovered at all – and to an unfavourable jury, failing to provide evidence may been seen as a very negative action indeed.

Constitutional Law

The constitutional law article is an interest particularly close to my heart – the extent of domestic covert surveillance and the legal foundation for it. I’m interested in watching the development of something which could utterly revolutionise both how people behave as well as how trials are conducted. I’ve seen enough on TV of the police patiently recording drug dealer’s conversations to see how useful it could be but I can think of how it needs controlled too and this article is interesting for this reason.

Criminal Law

The criminal law section this edition is actually interactive, which I think is a brilliant touch for a publication aimed at student. This section is looking at the accuracy of a number of fictious jury directions – for example:

Attempt
You have heard that the defendant entered the door of a bank where he was not a customer and that he had in his pocket a replica gun. He was spotted by the security guard and immediately turned round and left. He has been charged with burglary and attempted robbery… I now turn to the charge of attempted robbery. You must not convict the defendant of attempted robbery unless you are satisfied that he intended to commit theft and intended to use force in order to do so ar at least intended to put someone in fear that he would use force in order to do so. If you are satisfied on that matter, you still must not not convict the defendant unless you are satisfied that he had actually got as far as making the attempt, that is that his actions had gone beyond preparation such that he could be said to be “on the job”. You may consider that his actions were such that they had only one explanation, namely that he was ment on robbery. If so, that will make clear to you that his actions had gone beyond preparation and that he had made an attempt.

Commentary
Certainly the defendant cannot be guilty of an attempt if he das not got an intention to commit the full offence, here robbery. Certainly also, the defendant cannot be guilty unless his actions have crossed over from acts of mere preparation, so that he can be said to have made the attempt. The error the judges made was in the last two sentences of the extract above. It was wrong to direct the jury on what used to be know as the “equivocality theory” and to instruct them that the defendant must have gone beyond preparation if his actions were unequivocal, inexplicable on any basis other that that he had the necessary intention. That was wrong begause firstly the equivocality theory probably never was part of the law, it did not survive when the common law offence of attempt was replaced by the statutory effence of attempt in the Criminal Attempts Act 1981. Any specific pre-1981 tests of proximity no longer apply and the usse of whetther the defendant has beyond preparation is now simply one of fact for the jury: Gullefer [1990] 3 All ER 882.

As you can see, the direction sounds perfectly correct on the law except in one point which is technically not an accurate point. While robbery is not a Scottish crime equivocality theory is an issue which appears up here too, with the same caveat of the statutes which limit it. It’s perhaps a little early for a student to be learning about how to make jury directions but nonetheless it is a very effective way to revise exact (and exact knowledge is important) knowledge of legal principles.

Employment Law

The Employment law section is of interest to students who do not work on a permanent contract as it concerns the legal rights of agency workers – since agency workers do not qualify under some of the strongest workers protective legislation, and lose some of the protectiotns that permanent workers have. Andrew Bell, from Nottingham Law School uses the case of James v London Borough of Greenwich [2008] EWCA Civ 35, which showed the rights arising to an agency cleaner who had to take some time off of work due to illness. The council who had previously used her services argued that she was not entitled to the same benefits as a permanent employee and could be replaced at any time.

English Legal System

Gary Slapper, from the Centre for Law at the Open University, writes an interesting article about legal professional privilege, a tradition which he explains as being due to:

“You don’t want to live in anarchy, you want to live in a soriety of laws and rules. As there are thousands of laws, you don’t want to have to become an expert yourself on them all, any more than you want to learn medicine just so that you can be your own doctor. You want experts on the law: lawyers. So, a society should encourage citizens to go to its lawyers for advice whenever they are in difficulties. To ensure the client-lawyer communications are completely private and confidential.”

It’s an interesting issue, one that I have most often seen in relation to the confidentiality that exists between a priest and a confesser. While, admittedly, this would be fine for an advocate because if the client admits to their crimes to them there is still a process in place for them to either be convinced to plead guilty or to change their representation. The example where it becomes strained is where a client goes to a solicitor not for representation, but for advice about a situation which is illegal. The typical example goes to R v Cox and Railton in which a libellous publisher went to his solicitor to be informed that he couldn’t sell property for his business partner and the man then asked if “anyone knew about the partnership except for you”. The solicitor was later called as a witness in the resulting trial and the testimony was part of the case which convicted them.

You would never admit to a crime to a lawyer if you knew this would then lead to your own prosecution but how about for events which you do not know are illegal? But, also, the other thing issue is that, unlike a doctor keeing a patient’s details private, there could be a public need that the information – for example a confession about a crime, be reported leaving this a contested area morally.

Equity and Trusts

This section includes a series of collected by M A Ramjohn, from Thames Valley University from around the world. Again these are right up to the minute and represent the current opinion of case law in the field. It’s a very useful resource to have a collection of extremely relevant cases which have only just been decided. As well as giving recent authorities it also lets a student see how recent events have played out behind the scenes legally. The cases cited here revolve around dishonesty and the tests for this. Dishonesty is a massive problem in trusts (ironically) because so much of the legally binding element in directly suited into keeping the parties honest.

European Union Law

Again, this section is a recent case report but, for some reason, despite the astonishing length that I generally associate with European Court of Justice and European Court of Human Rights reports I still find the reports fascinating and exotic – even down to the party names. I suspect this feeling of the exotic will fade rapidly the more I read of them but the fact is, right now, I think there’s a lot of charm to the European cases that I’ve read. I think that the fact that the European courts are the very last resort and tend to be for only the most serious and meritorious cases means that it weeds out a great number of cases which won’t be as interesting or as contested.

The case which Jim Davies, from the Centre of European Law and Integration at the University of Leicester looks at is a computer law one which came before the ECJ in January of this year – Productores de Musica de Espana (Promusicae) v Telefonica de Espana SAU which involves the issue of the downloading of copyrighted materials. The question which was referred to the ECJ was if the Spanish law which Telefonica based its argument on, while valid in Spain may have broken Community law. This was to deal with the issue of if ISPs could be used to gain real world information which would then be used to locate the people who are responsible for the downloading. This comes from the Belgian case SABAM v Scarlet which made this possible.

Evidence

The evidence column comes from the pen of Lisa Mountford, who is a solictor and a Barrister who is also attached to Staffordshire University Law School and discusses something fundamental to evidence law – the “admi[ssion] of hearsay in the interests of justice”. We have all seen legal dramas in which the hero witness has said “I didn’t do it, I heard that [...] did it, not me!” and the opposing laywer stands up and says “Objection – hearsay” and the judge immediately shoots back a “sustained” and tells the jury to disregard it. This example is uniquely American legal drama but nevertheless – this is a genuine point which has to be got around if the only evidence that can be provided is hearsay. If the only reason that your witness knows that someone did a crime was that someone else had told them, then there is no way that you can. The Criminal Justice Act 2003 actually defines what kinds of hearsay can be admitted, generally on the basis that they are essential to the case and there is a very difficult test involved with a lot of discretion on the part of the judge. The article also mentions that the admissability of a confession depends on the person who makes it, up until R v Y, where not only the person who made the confession is implicated, but also the people who were mentioned in it.

Family Law

The family law column comes from M E Rodgers from Nottingham Law School and describes probably the most extreme case in family law – a child being removed at birth. This case is chosen due to the topical nature and the fact that it is an effective cautionary tale where the effect that the removal would have been acceptable – had the correct procedure been followed and since there were mistakes made in the process that ended up in the child being removed from G the whole case was decided in G’s favour.

Health Law

Andrew Alonzi, who is a solicitor and a senior lecturer at Nottingham Law School discusses the Mental Capacity Act 2005 which came into full force on the 1st October 2007 and codified the issue of advance decisions to refuse medical treatment. It’s the living will for someone who does not want medical treatment for an illness or in the case of a heart attack or the like – however, there are a long series of checks before it can be confirmed that the person who refuses treatment is mentally capable of deciding that they do not want to be treated. This has to be a careful process because if someone decides to refuse potentially life saving treatment this is a weighty decision which is one that.

It is a very picky area of law which needs to be specifically addressed by someone who wants to decide to refuse treatment – because should a person who has refused, say, to be intubated if they stop breathing suffer a heart attack they can still be resucitated with a defibrilator and the events which are specified must be present (say, a loss of mental capacity after a stroke – up until there is a loss of capacity, they can still be treated in the way that they have refused) and should someone be able to prove that there are reasonable grounds (a fairly broad standard) that the person who refused treatment was unaware of circumstances that would have reasonably affected their decision – something which a reasonably diligent lawyer working with a doctor can almost certainly very quickly work out in short measure.

Intellectual Property Law

There is an interesting crossover here – with an IP challenge to a bioinformatic system. This leads to a question of the policy associated with patenting software in the UK – previously software inventions were not protected by the UK patent office. However, the European policy will allow software to be be protected this way.

Mark Van Hoorebeek, from Bradford University Law School, show that there are only four main requirements that are required for an invention to be patented – the invention must be new, must involved an inventive step, has an industrial application and (according to the Patent Act 1977 it must not be excluded by 1(2) or (3), which is unfortunately – at 1(2)(c):

It is hereby declared that the following (among other things) are not inventions for the purposes of this Act, that is to say, anything which consists of: a scheme, rule or method of performing a mental act, playing a game or doing business, or a program for a computer.

Which sadly means that the whole computer program is forbidden, no matter how well it qualities under the other three points. However, in Europe, it is possible to patent a software application and therefore, there is a gap in the domestic law which, according to my professors, would be filled by the Community law.

International Trade Law

Dr Jason Church, from the University of Westminster, provides a student eye view of how to use the Hague Visby rules in your studies to deal with issues of international carriage. It’s a reasonably short article packed with practical advice for law students faced with questions on this topic – Church reports that the questions are popular because of the schematic layout of the system and this advice may come in useful in the future once I start to look at jursidictions outside Scotland.

Jurisprudence

Stuart Toddington, also from the University of Westminster, gives an interesting look at the jurisprudence of “Universalism, Multiculturalism and the Rule of Law” which looks at the faults of the traditional universalised way of looking at people under the law to looking at the individual traits of the people involved and how this affects their position. It’s a fundamentally different approach which has begun to slowly sweep the legal field, one very heavily publicised example is in the changes to the treatment of victims of rapes in trials. Technically a rape victim is just another eye witness but there is a major difference from them to someone who spotted a drunken driver enter a car. The issue of multicultuarism leads to another problem – one in which societies which have vastly different priorities to the standard English or Scottish legal system, for example, someone who rates their loyalty to the State (the sworn oath of honesty) less highly than their loyalty to family (who may be on trial) may not be as honest a witness as would be hoped. The issue of dealing with this is a big problem in a modern, multicultural world where people are different but considered to be exactly the same before the law. It is also seen in the famous “same but different” decision which meant that segregation was still allowed in the US up until fairly recently.

Land Law

Dr M J Dixon, Reader in the Law of Real Property, Queen’s College Cambridge, writes about the effect of an Appeal Court decision (Ofulue v Bossert [2008] EWCA Civ 7) about adverse possession. The interesting fact is the issue of the now settled spill over of ECHR decisions which affected this case which means that the state of European law more tellingly affects this area of law, the possession of land, than previously confirmed.

Tort Law

Firstly, you immediately see that this publication is not entirely Scottish in intent and, in fact, it really could not be any less Scottish with serious effort. The cover story is about how to qualify to the bar, in New York and this section here happily talks about an area of law which is huge in the rest of the world – especially in common law systems because of its origins in England, but called Delict here. Nevertheless, although the systems are distinct and different this does not mean that the issue of fault and injury differ that dramatically even though the jurisdiction changes and the basic lessons from both are pretty much directly applicable.

Roderick Bagshaw, Tutor and Fellow from Magdalen College, Oxford gives a report on limitation and a report on negligence. In the first case, the tort case is one which is raised by victims of sexual abuse during care who missed the time limit but argued that they should still be able to claim. They claimed that the claims for deliberate abuse were for breach of duty”. This meant that, as the abuse was in the line of employment it circumwents the issue of Stubbings v Webb [1993] AC 498 which held that “claims for deliberate assault were not ‘for negligence, nuisance or breach of duty’ and thus, the employers of the abusers should be vicariously liable for their injuries. “The decision turned on the interpretation of the phrase ‘for negligence, nuisance or breach of duty, in a statute”

The case also provides guidance on the point at which the claimants have knowledge – that is they know “a) that the injury in question was significant” and “c) the identity of the defendant” and this is tested under the stanadardof the reasonable man – which leaves a lot of discretion the courts. It is interesting even from a lay perspective to see what counts as knowing from a legal perspective.

The other case, which deals which negligence relating to a public authority, is Jain v Treant Strategic Health Authority [2008] 2 WLR 456, this is to do with the question of an unlicenced nursing home. The challenge resulted from the owners being alledgedly reckless with their registration, the appeal was allowed, although one judge dissented. This case also looks at the

Book Review

The books reviewed this edition are:

The main piece is about “Revenue Law – Text and Materials” byDavid Salter, Natalie Lee and John Snape and the short piece by Tim Vollans, Coventry University Law School highlights the strength of previous books on the subject and the strength of this one. It’s an interesting sentiment where the field can be covered by a textbook and a casebook.

The other books recieve less attention but nonetheless have a useful mention, sounding like a blurb:
International Law 6th edition, Malcolm Shaw

“Malcolm Shaw’s engaging and authoritative International Law has become the definitive textbookfor instructorsand students alive in this increasingly popular field of academic study. The hallmark writing style provides a stimulating account, while maintaining detail and academic rigour. The analysis integrated in the textbook challenges students to develop critical thinking skills.

Key Features
Completely updated 6th edition contains:
New chapter on international criminal law
Dedicated chapter on the International Court of Justice
Detailed references throughout encourage further reading on the part of the student at either an undergraduate or postgraduate level.
High level analysis ombined with stimulating and engaging writing style.”

Also noted in the book review section is:
The Law and Policy of the world Trade Organisation, Peter Van den Bossche

Also worth noting is the 20% discount code offered from Cambridge University Press if you use the discount code on this page, with the price of law textbooks it is always worth looking at any savings you can find.

For those whose law schools are not as generous or would prefer to have a copy delivered to their home the Student Law review costs £16.50 for a 1 year subscription or £39.50 for 3 years, which includes a 20% discount. The publication comes out 3 times a year. The magazine is subsidised through adverts which dot the pages. The adverts are, for the most part, uninvasive and they are all scrupulously

The Student Law Review subscription line can be contacted on +44(0)17553 681813 and the subscription form is inside the magazine.

This was an unexpected challenge of a post. Normally, I would have split this post up into separate reports on each of the articles and publish each one as an individual post but in this case I wanted to show what the typical edition of Student Law Review contains and I think I have shown that it contains a great deal of unusual content, however I was trying to do it in a minimal style. The full edition is nearly 60 pages long and full of dense text so these few thousand words were not the easiest to cut down. I personally think that any law material you read during down periods is beneficial to your overall development as a law student – one of my tutors actually recommends trying to read three cases a day -presumbaly for four years, which is a staggering undertaking, so I feel that reading periodicals which are themselves entertaining may not train you to read the primary sources of law but are still a side of legal reasoning that is worth exposing yourself to.