It has to be done - the Magna Carta

Author: The Displaced Academic /

Lately there's been a lot of attention directed at that magnificent document, the Magna Carta. Unfortunately, as a keen lover of Legal History, I'm struggling a bit with the fuss, so let's talk a little bit about it.

Firstly, here is some fuss, here is a copy of the Magna Carta's text, and here is the info about the upcoming exhibition at the British Library.

So, the Magna Carta is and was pretty special. Firstly, at that time (the first draft was written in the year 1215) "statutes" weren't really a thing: there was a system of common law, based on decisions of judges (at that time fairly synonymous with barons/lords, including the King as the ultimate lord), and the results of individual cases. If the King said "It shall be that X", that's not really viewed as too different from a judge saying it - certainly there's no division of the stuff said by the legislature (nowadays Parliament) and the executive (nowadays the government) because they weren't clearly demarcated. So the Magna Carta is special because it was a set of written rules for the whole country, although it didn't set out a form or process for creating statutes generally - it was a special case.

Another special feature of the Magna Carta was its help in centralising the power of the king and ensuring the kind of complete power that kings had in this country for hundreds of years. "What!", I hear you shriek - the Magna Carta is a charter of rights and enshrined principles like the right to know what you're being accused of! Well, yes, as a by-product, but we'll come back to that in a minute.

Some time before the Norman Conquest, most people know from school history lessons, England was a number of separate kingdoms (Mercia, Wessex, etc). Eventually they were all united under some stronger kings, with the help of some viking invasions (of which the Norman Conquest was really just a big one - "Norman" = "north man" = "basically a viking living in France"). So when we have the Magna Carta being pressed onto unwilling King John by his barons, they're not used to being subject to an all-powerful king. The deal is that you provide military service ("knight-service" is one of the main tenures, or ways of holding land, that Littleton describes) in return for control of land. You're answerable to the King if you're fairly high ranking, or else to another lord, creating a chain of tenures with the King at the top and peasants in villeinage (serfs) at the bottom. What you do with your underlings is largely up to you: they pay you, work for you, provide food, whatever the conditions of their tenure are, and if they have a complaint about another tenant, they come to you for justice.

However, these "lords courts" or "baronial courts" weren't exactly the fairest system - what happens if your complaint is that your lord himself has wrongly taken your land? So individuals and tenants of lords other than the king would skip asking their lord to correct the wrong and go to the king/the king's councils and ask for help. The King might then help you out in your case (this eventually becomes the Chancery Court and the are of law known as "equity" - but that's a blog post for another day). The trouble is, that you haven't paid any money for administration etc to your lord's court, because you've gone straight to the King, and quite possibly the King/his officials are now telling your lord that he can't do what he wants to, or perhaps that he needs to give your land/cow/daughter back, when he'd rather keep it/her.

So, about halfway through the Magna Carta it provides that the writ called "praecipe" shall not be issued to deprive a free man of his court. Probably the goal here is to protect the baronial courts from losing all their jurisdiction to the (arguably) fairer and more effective courts of the King. There is another argument that it was meant to protect tenants from the inconvenience of having to go to the King (physically travelling to his location), but given that the barons are imposing these conditions on John, we can make an educated guess here as to the prevailing motive. This part of the Magna Carta turned out to be pretty much ineffective: royal writs would include in them that the lord had waived his right to court, basically abusing the system and skipping the part where you actually ask the lord to do that in the hope you'll get away with it. Within a hundred years the baronial courts are dying off and justice has been largely centralized in that it's now King-focused .

So that great preserver of rights, the Magna Carta, included a preservation of the barons' rights to, er, not respect their tenants' rights. 

But that's just one provision from many. 

We have a provision for the freedom of the church, right at the very beginning, for instance - that sounds like a right being protected. That's about election of churchmen and interfering with the clergy, which of course matters when they're the ones doing the marrying and wills and estates etc, more than it's about freedom of religion. King John had recently refused to appoint an Archbishop of Canterbury in an attempt to commandeer the income from the seat and had an argument with the Pope about it - this was one of the important causes of the barons' revolt that caused the creation of the Magna Carta. But it's a good start, perhaps - possibly undermined by other provisions from the time and the statute in 1279 which said you can't leave too much to the church in your will to stop the King from being deprived of income (once it goes into the Church's dead hand, "mortmain", it's never going to go back into private hands - something Henry VIII noticed acutely). 

Then there's quite a lot about inheritance and marriage. That genuinely does include some rights: rights not to have your inheritance subject to an unreasonable fee or have its income abused by your guardian, powers to marry off your young wards, a widow's rights. All good stuff, totally irrelevant by the late 16th century and not the stuff of the HRA. 

Now, a real right, at last, is found in the paragraphs about "scutage" and "aid" - this is basically tax legislation, limiting the amount of money you can extort from your tenants, including limiting what the King can take from his tenants, the barons (but didn't apply to "unfree" people, ie the ones actually working the land - you could extort whatever from them until Tudor times). King John had been exacting some fairly massive taxes during a time of high inflation, and the barons needed to check that for their own sakes. Great - and one of the main reasons the Magna Carta was disavowed and reissued so many times. Kings don't like being told how much they can tax - the English Civil War shows what happens when they get carried away. So we have promise in these paragraphs, but a few hundred years to realization, and also bear in mind that the only people who had to be consulted for a tax to be valid were the rich and powerful. 

Then we have some administrative provisions about courts; these are useful and helpful. Included in these provisions we have the gloriously famous provision that no free man shall be imprisoned except via lawful means (to paraphrase a little). Again, this was probably included because King John had a habit of imprisoning people who disagreed with him and taking hostages, rather than because anybody was trying to create foundational rights - to give the document that meaning is an anachronism. 

My point is not that the Magna Carta isn't a fantastic document - I have a framed copy on my wall - nor that it wasn't hugely important. But as we celebrate 800 years from the first draft, we should be aware of the context, the meaning it had to those who created it, and remember that when we say "it created fundamental rights and justice for all" that we're imposing our own values on a document created by the rich and powerful, who were seeking to preserve their wealth and rank, and who (all several dozen of them, all men) completely ignored the unfree ordinary people who made up most of the population of England. 

P.s. if you're interested in this stuff, you can't do better than Peter Ackroyd's "Foundation" book, or, for the more technical legal mind, J H Baker's textbook on legal history. 

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Proximity and Pure Economic Loss

Author: The Displaced Academic /


Is the essential question in pure economic loss cases about the presence of a proximate relationship? Proximity has been used generally by the courts in negligence cases to restrict undesirable liability, and it could be argued that there is a lack of a principled basis in this area (as Stapleton does). The question is whether the duty the defendant had was designed to prevent the kind of loss the claimant suffered, meaning that in pure economic loss claims a duty to prevent physical harm to the claimant, or to their property, will not suffice (with the possible exception of Greystoke, below). Some believe that most if not all duties of care in regard to economic loss have emerged from the principle in the case of Hedley Byrne: where the claimant's injury results from reasonably relying on a statement/advice from the defendant, and the defendant knew/ought to have known that it was likely they would do so, a duty of care will have arisen to exercise due care and skill in making that statement/advice. However, as Lord Oliver pointed out in Murphy, it is 'not… necessarily to be assumed that the reliance cases form the only possible category'. There are some instances of the courts finding a duty of care in regards to economic loss that do not seem to be based on the Hedley Byrne example of proximity, such as White v Jones, where I would argue it makes more sense to look at those cases for separate principles. This is particularly so in regards to the fact that Hedley Byrne has been treated as dealing with words and not actions, and yet liability has been considered in cases of services as well as advice (Henderson, Junior Books).

Proximity as Non-Existent in Economic Loss Cases

Lord Oliver suggests that categorising a case as a pure economic loss case simply means that we need to look for something more than mere reasonable foreseeability to establish proximity. This makes sense in the light of the view that prevented a duty of care being found in Spartan Steel: although the infliction of personal injury or property damage universally requires justification, pure economic loss does not. Similarly, the importance argument raised by Lord Devlin argues that economic loss is rarely serious enough to justify liability. This, in addition to a floodgates argument, prevented the court finding sufficient proximity prior to the case of Hedley Byrne. But is this really fair? Although it was certainly true in the early 20th century that property and person meant more than economic loss, is that really true in the modern world? My understanding is that the biggest, most valuable thing that most people own is a house, and losing that is devastating, and yet when a builder builds your house wrong, the court says that's not a serious enough loss to require liability? This is clearly a terrible argument. 

Hedley Byrne

Why then, did the courts feel that there was sufficient proximity in that case (but for the exclusion)? Multiple reasons were offered by their Lordships, centring on a concept of 'assumption of responsibility' or a special relationship. What this seems to have been intended to mean is that 'the party seeking seeking information or advice was trusting the other to exercise such a degree of care as the circumstance required, where it was reasonable for him to do that, and where the other gave the information or advice when he knew or ought to have known that the inquirer was relying on him.' (per Lord Reid in Hedley Byrne). We can therefore be sure that if the relationship in question matches this description, that there is sufficient proximity.

What this formulation means is that assumptions of responsibility can be found where reliance is implicitly invited, as in simply giving advice as above, or where it is explicitly invited, as where it might not have been reasonable for the claimant to rely, but the defendant has expressly told them to. This can be by professing yourself an expert (Mutual Life), or simply by assuring someone that they can rely on you even though the context is social not professional. Where the relationship is professional, the extended principle in Hedley Byrne applies, so that where a professional undertakes to do a task with a certain degree of care and skill, a duty arises. This appears to have been limited by Robinson v Jones to professionals giving advice they expect others to rely on, although Henderson v Merrett shows that the idea can be used more widely (to implication by professionals).

There is, however, debate in regards to the principle in Hedley Byrne. Some judges have held the concept of 'assumption of responsibility' as empty as a proximity test, simply meaning that this is an instance where the courts will impose liability and nothing more (see Lord Griffiths in Smith v Eric Bush). This is arguably because in that case liability would not have been found under the Hedley Byrne principle as stated above, and so the only way his Lordship could find liability where he wanted it to be found was to reject that aspect of the test (a glaring demonstration that the courts do no such thing as just follow the rules, and you know what? That's ok). McBride and Bagshaw argue that this was not necessary, as not every instance of a duty of care in regard to pure economic loss arising falls under Hedley Byrne. This appears to be the correct view, and is enlarged below.

The apparent problem that has arisen in cases of defective premises like Smith v Eric Bush and Murphy is that they don't fall under the proximity test in Hedley Byrne due to a lack of relationship between the defendant and the claimant, and yet the courts have found a duty of care. In Anns, the court avoided the issue proximity by classing what has been clearly recognised as economic loss ever since as physical damage, allowing the claimants to sue (sneaky). This was rejected in Murphy (without technically overruling Anns) and yet in Smith v Eric Bush a surveyor was found to have a duty of care in relation to a house buyer, even though they conducted the survey at the request of the mortgagee and not the buyer (three parties). It looks like this cannot be established on Hedley Byrne's proximity test because the surveyor had not assumed a responsibility to the buyer, only to the mortgagee. Lord Templeman attempted to found a duty of care on the relationship being 'akin to contract' and therefore proximate, but Lord Jauncey pointed out that this was arguably an abuse of the concept as stated by Lord Devlin in Hedley Byrne. Lord Griffiths, and Lord Jauncey therefore held that there was a sufficiently proximate relationship based on payment by the claimants for the survey and the defendant's knowledge that it was highly likely they would rely on it.

McBride and Bagshaw offer a more developed explanation of Smith v Eric Bush, which, they argue, also explains other anomalous cases such as Spring v Guardian Assurance and Phelps v Hillingdon. They argue that in all of these cases a duty of care arose because the defendants knew that the claimants' futures would be ruined if they did a certain positive act. This would mean that in cases attempting to follow Smith v Eric Bush, the consequences for claimant of the defendant's lack of care must be devastating financial loss, a somewhat stricter requirement than high likelihood of reliance, which would additionally prevent most if not all commercial cases of this type. In Scullion v Bank of Scotland, no duty of care was found because it was not reasonable for the claimant to rely: they could afford their own surveyor. This would further explain cases of 'business sterilisation', such as the Australian case of Perre, where someone's entire business was at risk as a result of the tort. Bagshaw would even argue that this is a distinct form of economic loss because it involves impairment of legal freedoms. This view has the appeal of covering a range of the cases that do not seem to fit well with Hedley Byrne, and avoids having to make Lord Griffith's argument that assumption of responsibility is empty in cases that do fit.

It is possible to trace Hedley Byrne through Smith v Eric Bush as an extension to the supply of information, even to third parties, where there is sufficient foreseeability. It can be used to explain Henderson v Merrett and Junior Books on the basis of Lord Goffs redefinition of assumption of responsibility as entrusting someone with the conduct of your affairs and relying on them, but there are at least two other grounds on which courts have found a duty of care in relation to economic loss. Sufficient proximity was found in Greystoke, and in White v Jones. These are two very different cases and must be addressed separately.

In Greystoke, a collision caused economic loss to cargo owners as a result of damage to a ship because they had to pay for the cargo to be unloaded and reloaded. They claimed against the owners of the ship that had collided with the Greystoke, the Cheldale for a percentage value of how much they were to blame for the collision (25%). This was a case of 'relational' economic loss, where a third party suffers economic loss as the result of the defendant's damaging property belonging to someone else. Perhaps surprisingly, the House of Lords allowed the claim. This case does not seem to have caused the courts too much difficulty, as efforts have been made to confine it to maritime law. However, an analysis of this case similar to that of Page v Smith in physical negligence can give rise to a more general principle: the defendants had a duty not to crash into the Greystoke based on reasonable foreseeability of property damage to the claimant's cargo. The immediate result of the breach of that duty was economic loss, which they were able to sue on because it was arguably just a matter of luck that no property was in fact damaged. However, unless a strongly analogous case arises, this duty of care is not likely to come to the courts' attention often.

In White v Jones, Lord Browne-Wilkinson thought the case could be decided under Hedley Byrne on the basis that neither mutuality nor reliance were needed in a 'special relationship' such as a fiduciary one: a negligent trustee is liable to the beneficiary even if they've never met nor relied. However, the other judges in the case could not imagine a Hedley Byrne relationship without some form of reciprocal dealings: the whole point of proximity is limiting the persons to whom the defendant is liable, and without that requirement this limit disappears. Lunney and Oliphant argue that this is just an anomalous case decided on its facts in a special situation, but McBride and Bagshaw attempt to explain it in terms of 'intermeddling'. They argue that a duty of care arose between the solicitors and the daughters because had they not been careless in their assistance, the daughters would not have been prevented from obtaining the benefit that their father wanted to confer. This looks surprisingly similar to the but for test: but for the defendant's tort, the claimant would have obtained a benefit. This is arguably a better explanation than simply dismissing the case as 'practical justice' (Lord Goff) or an anomaly, but again this principle is likely to only be an issue in strongly similar cases, such as Carr-Glynn, where it was simply followed on the facts.

Thus far, two views of what proximity in relation to economic loss means have been examined: one is that all such cases extend from Hedley v Byrne, the other that many do, but that some special cases have developed their own rules. There is another view held by those such as Yap: the idea that in fact the only reason that courts won't impose a duty of care in regards to economic loss is a concern to prevent the defendant's exposure to indeterminate liability. This is central to the concept of proximity, as I have argued in disagreeing with Lord Browne-Wilkinson's analysis of White v Jones, above. This would explain the frequency of cases that don't fit with Hedley Byrne, without having to attempt to develop specific principles to explain such situation specific rules. However, it is perhaps too broad to simply note a policy and decide all matters of law in regard to it: there must be other concerns in setting the scope of liability such as the extent to which the claimant has been wronged. I would argue, therefore, that the best approach is to attempt to distil principles from the cases to provide guidance in the future, and not simply to rely on either Hedley Byrne, stretching it far from the original concept, or a policy concern, to provide guidance as to when there is a proximate relationship. 

Incidentally, while we're talking about Hedley Byrne and things, there's a lovely mess in regard to the Hedley Byrne - Murphy Brentwood relationship worth mentioning. On one hand, we've got Hedley Byrne saying that there's a duty of care regarding pure economic loss when there's an assumption of responsibility and reliance, and on the other there's Murphy saying that builders are not liable when they screw up in building a house unless there's physical injury/property damage because otherwise it's unrecoverable pure economic loss. So far so good.

So then there's Pirelli v Oscar Faber. Decided under Hedley Byrne, it basically allowed recovery for pure economic loss, in a building case. Which makes perfect sense on Hedley Byrne: there was an assumption of responsibility by those doing the construction, and the occupier relied on it, with the result of the pure economic loss of having to rebuild it. Unfortunately it runs in the opposite direction to Murphy (awkward). The answer? The builder will continue not to be liable under Murphy, but the architect, surveyor, anybody that consults or advises on the building, they can be liable under Hedley Byrne. There is of course absolutely no difference between the surveyor and the builder in terms of the reliance, proximity, there's no policy reason, and really it's not even clear how to distinguish between a builder and a not-builder-but-involved-in-the-building-project-through-advice sort of a person. 

The only hope is the Defective Premises Act 1972.

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A Chill in the Air

Author: The Displaced Academic /

The cold weather seems to have well and truly arrived now, and my immediate response to it is to build a nest of blankets and spend days with books and pajamas. But the cold weather can only mean one thing, and that's the start of a new term at the good old university. And that means several things.

 The first and most worrying is the mock exam paper waiting for me that I just don't seem to be able to convince my brain that it wants to revise for. Luckily, real exams are still some time away so panic mode hasn't quite set in. But more distantly loom days and night of intense study, caffeine galore, and the inevitable tutorials, which either go so well, or so so badly.

 Then there's the looming prospect of working on two separate editorial boards in addition to my ordinary (heavy) workload. Although it seems like madness, building up things like this is just the only way to build up a strong application for training contracts, so its commitment full speed ahead for me at the moment. It does mean the building of skills that others won't necessarily have, and demands time planning, which all employers love, so we have to embrace the madness, and engage in the tightest of scheduling.

 So with law streaming in and out of my mind at the speed of light, the prospect of packing my belongings for another year of learning, socialising and experiencing life as a law student looms.

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A Drop of Russianality

Author: The Displaced Academic /

Inspired by the film release of Anna Karenina with Keira Knightley, I thought I'd have a read of some of the great Russian literature around. So I have recently boldly worked my way through The Brothers Karamazov by Dostoyevsky and Anna Karenina by Tolstoy. They're two very different books with very different styles, and I got on much better with the latter than with the former.

Although both writers were living in the same rough time period (from the 1820s to the end of that century), they have very different takes on writing. Dostoyevsky makes you really work, in the same way I think as Hugo does, so that you're compelled to continue reading a lot of the time not through interest in the plot but in trying to figure out what exactly it is you're reading about. It didn't help of course that Russian names are confusing at first sight: someone will have their birth name, they patronym, which tells you who their father was and is different for males and females, their family name, and their affectionate nickname used only by family and close friends. So we have Anna Karenina, who is also Anna Arkadyevna, although at least she doesn't have a nickname. Her son is Sergei Karenin, also Sergei Alexeyich, also Seryozha. That's not so hard to figure out in Tolstoy, but in Dostoyevsky you dive in and have to realise that Aloysha is also Alexey and that they're all Fyodorovich and Karamazovs. It gets you a bit tangled up if you're not familiar with it.

As for plot, again Tolstoy does it better for me. The plot in The Brothers Karamazov is convoluted and has a fair few characters, but really very little happens in it. The outcome is depressing enough, the picture of the justice system is too, but really there's not much story to get your teeth into. The long investigations into religious principles will get you thinking if you feel like it, but it seems the book is largely a vehicle for views with not much of a plot to hold it together. Anna Karenina has some elements of religious and moral investigation too: the heroine is tormented by guilt and Levin, a less vital character, does a lot of thinking about religion towards the end of the book, and leaves us with the message that it's ok to not understand life as long as you spend your life in the pursuit of goodness. But Anna Karenina on the whole is an easier read, written in a much more accessible style, and there's much more plot to get your teeth into. There are a myriad of realistic, active characters who engage in various activities and vices and the main plot is supported by a couple of smaller ones that tie in nicely.

I couldn't help thinking that Anna Karenina is pretty similar to a Greek tragedy in a lot of ways, and although I was constantly propelled to read more because the book is well written, I found it hard to really connect with Anna. She's pretty all over the place, and seems to transform completely from someone lovable and sensible to someone just a bit bonkers. There's a strong message about the dangers of social interactions in there, but really Anna's behaviour just doesn't make sense to me, although that is at least part of the point.

All in all having read both books I feel I have a better understanding of Russian culture and history at that time, which is in itself interesting, and there was something to appreciate in both books.

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Something is Rotten in the Land of Administrative Law

Author: The Displaced Academic /


The system of special advocates used in the UK is probably not compliant with Article 6 of the ECHR. It is, however, at least better than nothing, as was noted in Roberts. There are several possible Article 6 objections to the special advocate system: firstly, Article 6 entitles a person to a fair and public hearing, and although it is allowed that the press and public may be excluded from the proceedings in the interest of national security, it nowhere says the parties may (possibly because of the inherent injustice of such an idea). Secondly, there is a shocking discrepancy between the rights of those who are charged with a criminal offence as stated in Article 6, and the rights of those who are merely suspected of being involved in terrorism-related activities, without having actually been convicted of a crime. A person charged with a criminal offence has the minimum rights of being informed of the nature and cause of the accusation, the right to a defence in person or through legal assistance, and the right to examine witnesses, all of which are denied to the terrorism suspect, who has not in fact been charged with anything.

It is true that the European Court of Human Rights at Strasbourg has not condemned the special advocate system, but the most that can be said is that they have perhaps tacitly approved it be references to procedures that respected both legitimate security concerns and due process in Chahal. There has, however, been a HRA challenge to the procedure from within the UK in Re MB. Firstly, the High Court said the special advocates procedure wasn't a fair hearing, then the Court of Appeal said it was fair enough because full disclosure wasn't required by Article 6, then the House of Lords accepted that it might not be fair in some cases. This shows, if nothing else, that the issue is very much open to question. In A and others v UK Strasbourg said the special advocate system and the use of closed material was an Art 5(4) breach, which is very closely linked to Art 6.

But firstly, what is the special advocate procedure? This is necessary to briefly examine because it is the mechanisms of the procedure that show that the Art 6 rights of the appellant/controlee are not being adequately protected.

Where the case against someone contains information that cannot be disclosed to them without potentially endangering national security, or a non-derogating control order which restricts someone's freedoms because they are believed to be involved in terrorist activity, the court will appoint them a special advocate. This special advocate has access to all of the closed information, but once they have seen this information the communication between the advocate and the person they represent is extremely limited. The advocate can apply for permission to communicate with the person they are representing, but the Secretary of State must be notified and they can refuse permission. John Ip found that advocates rarely used this procedure. Secondly, if the appellant/controlee wishes to communicate with the advocate, they can do so, but unilaterally, and in writing.

The Court of Appeal's justification in Re MB was that full disclosure to the appellant/controlee wasn't required as long as adequate procedural safeguards were in place to prevent prejudice. This is not an acceptable justification, as the House of Lords tentatively recognised, because the special advocates procedure does not allow communication between the advocate and the appellant/controlee after they have seen the closed material. If the substance of the case against you is in the closed material, and you cannot communicate with your representative, that's not a lack of full disclosure, that's a lack of any disclosure. If you don't know the case against you, and your advocate doesn't know you, the likelihood of you being adequately represented is minimal. Indeed, there was only one successful appeal under the UTCSA procedure that originally introduced special advocates.

It would seem, then, that the procedure could be improved somewhat by allowing communication between the special advocate and the person they represent. This does raise some concerns about ethical issues, as it brings the position of the special advocate closer to that of the traditional legal representative. What would the situation be if the appellant/controlee disclosed information prejudicial to their case? Boon and Nash suggest this could be dealt with by introducing a professional code of practice, which although potentially costly could be a sensible solution. Other objections might argue that if the lawyer is communicating with a suspected terrorist they risk disclosing the information, but this is nonsensical, as special advocates are experienced and security cleared lawyers. It should also be noted that normal security officers are capable of questioning suspects without disclosing important details through the use of oblique questioning, and there seems to be no reason why special advocates would not be at least equally capable.

There is also a further, overarching Article 6 problem, potentially. Given that special advocate procedures apply to civil proceedings, Article 6 gives the right to an independent and impartial tribunal. The Secretary of State assessing someone's involvement in terrorism-related activities on the broad grounds in the Prevention of Terrorism Act 2005 is an executive action, not a judicial one, and thus not an independent and impartial tribunal. The courts have reasoned this away, as they have in other cases, by arguing that Article 6 applies to the overall fairness of the system, and because there is a right of appeal, it is not breached. Although this may be acceptable in normal criminal proceedings, where the person in question is already having to try to defend themselves in a situation where they may well not know the body of the case against them, it is a step too far away from justice to refuse them an independent and impartial tribunal as well.

It was a step in the right direction that in AF the House of Lords recognised the need for the parties to have 'sufficient information' to direct their special advocate, but it is hard to see how this will be possible without greater disclosure or provision for communication. A report from the Joint Committee on Human Rights indicates that the government is still extremely unwilling to disclose any more information than the minimum, taking an extremely precautionary approach. The government has also attempted to distinguish the context of the case, as in Tariq, so that closed material can continue to be used in other situations. The Joint Committee on Human Rights noted this, and strongly urged the government to reconsider the implications of the procedure in the light of A v UK in a comprehensive review of the system. Legislative reform has effectively renamed control orders, now terrorism prevention and investigation measures, and has made some express provision for Art 6, but the special advocate system is still in place, and it is up to courts and government lawyers to decide what sufficient information is.

It seems then, that the special advocate procedure in fact breaches Article 6 of the ECHR in multiple ways. Although it is admittedly better to have some representation than none, the system remains manifestly unfair because of the lack of communication allowed between the special advocate and the person they represent. This at the very least should be relaxed. There is some concern to be had over the increased use of the special advocates procedure at common law. Public interest immunity is a preferable method, as it involves the court weighing the benefit of disclosure against the value of secrecy, rather than it being automatically a closed hearing. There are also broader considerations about the entire process: the fact that non-derogating control orders are really of such a degree in many cases that they are in fact derogating from Art 5 (as the Supreme Court), but they are much easier to impose. The fact is that the special advocate procedure's justice is shaky at best, and it is used in cases where a person's most fundamental freedoms are at stake.

Any alternative approaches to this sticky sticky problem would be wonderful. I've yet to formulate anything particularly good, although I keep trying. 

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Proportionality vs Wednesbury

Author: The Displaced Academic /


A more academic post than usual, I thought I'd explore my thoughts on some administrative law as a revision exercise.

Proportionality is a principle in EU and ECHR law that requires that there be a reasonable relationship between the objective which is sought to be achieved and the means used to achieve it. UK courts already use this principle when reviewing actions or legislation for ECHR or EU law compatibility but a question has arisen as to whether it is also a ground of review in domestic administrative law, or, more controversially, whether it ought to be. There are dedicated advocates on both side of the debate, with some holding that proportionality is only suitable for rights based cases, others that it could be a general head of review, and still more academics proposing a bifurcated approach using proportionality and Wednesbury unreasonableness. The back and forth between Craig, Hickman, Taggart, King etc has filled a whole special edition law journal (New Zealand Law Review, 2010) as they argue about the pros and cons of proportionality and it's proper place. The debate centres on the fact that proportionality is a more searching standard of review than Wednesbury unreasonableness, and the question of what the current situation is can hardly be separated from opinions from both judges and academics as to how it should be.

It was stated in R (Association of British Civilian Internees: Far East Region) v SSD by the Court of Appeal that they had difficulty in seeing what justification there now was for retaining the Wednesbury test, but that court was not able to abolish it. There does seem to be a fair amount of hostility towards Wednesbury around (I myself despise having to type it: you always end up with Wednesday instead). In the light of the increasing influence of comparative and international law on UK courts both in statutes such as the HRA and ECA and in judgments themselves, where judges are more inclined than before to consider international cases as 'soft law' to create a framework for their own decisions, it would seem that accepting an international test into domestic law would make sense, especially since the courts already use it in regards to EU and ECHR cases. However, some objections can be raised to doing so, and there is heated academic debate on the issue.

One objection raised to proportionality as a general ground of review is that proportionality does not translate well to non-rights based cases. Taggart argues that proportionality is useful only in certain contexts and he and Hickman argue that it would be a reversal of the current burden of proof,  thus imposing an unfair burden on administrative bodies. They argue that although Wednesbury unreasonableness is a 'safety net' test, engaged where the case is so outrageous as to not fall into other categories of review, proportionality is a starting point test to which one would automatically go. The result of this is, they would argue, that where a proportionality assessment is engaged, it is presupposed that the alleged act, rule, or decision is presumptively unfair because it infringes a right, so it must be justified by the person doing it. Contrastingly, unreasonableness review presupposes the act is lawful, putting the burden of proof on the affected party to show that it is not. If this is the case, general proportionality review is not desirable from a cost point of view, as it would encourage wasteful litigation from those trying to take advantage.

However, this view has been countered by Paul Craig, who argues that the EU has managed perfectly well with proportionality as a general head of review for forty years (Hickman rejects this argument because of the lack of precedent in UK or common law jurisdictions for using proportionality this way).

He argues that objections fail to realise that proportionality review being applicable to all administrative decisions does not mean that it would be the only head of review, and that it has better normative and practical justifications than rationality review. Furthermore, proportionality requires that the decision making body justifies its choice in response to a challenge in exactly the same way as rationality: the criteria are what differs and not the direction of the burden of proof.

Craig argues that proportionality has a threefold normative justification as a head of review. Firstly, it fits with the belief that a public body is given power for a purpose, and the court should review to ensure it keeps broadly to that purpose, ie, that administrative action requires reasoned justification. Craig further argues that there are structural benefits to proportionality because Wednesbury unreasonableness is often applied in a structurally lacking way, and that it would be more simple to have one test across the board, although critics take issue with this statement too. The point is perhaps less convincing because a pragmatic simplicity cannot form a principled basis for a legal doctrine, but it is worth keeping it in mind in terms of administrative efficiency.

The benefits of the structure of proportionality as Craig describes it may well counter suggestions that proportionality puts the burden of proof the wrong way round. Craig argues that the structural benefit is that the agency must show that the challenged action was necessary and suitable, and that it did not impose an excessive burden, whilst the court must show the opposite to quash the decision. This seems like a fair approach, and where there was no clear decision either way, as is likely to often be the case, it would be a balance of the two sides that decided the result. This balance is perhaps played down in the conception of proportionality in the British courts, as Rivers argues, whilst in Europe the balancing is the key.

Craig offers further support for proportionality as a head of review in the form of criticisms of rationality review, or Wednesbury unreasonableness. Practically, he argues, if one were to have proportionality as only a rights based inquiry, as Mike Taggart suggests, rationality review would rarely be useful in the Wednesbury form. Because of the high standard of proof, although cases of a decision that no reasonable decision maker could have made could in principle arise, in practice it would be very hard to prove such a departure from reason. Furthermore, in practice, this is not how the courts use the test: both Sedley J and the Court of Appeal have acknowledge that it suffices to show some error of reasoning that robs the decision of its logical integrity, which is not in fact the test formulated by Lord Greene.

Lord Bingham held in A v Secretary of State for the Home Department that the intensity of review is much greater under the proportionality approach. This is desirable in many ways, as it means that the court can consider alternative courses of action instead of being limited to the narrow considerations under Wednesbury, although this leads judges onto controversial ground. However, King would have it limited for that very reason, restricted to cases where there is a special reason for more intensive review, and keeping rationality review otherwise. This doesn't have the advantage of simplicity, but it does at least recognise the role proportionality can legitimately play in English administrative law.

 The criticisms of the test itself in Wednesbury can be coupled with the argument that although there are normative reasons for rationality review, there are none for so strict a form of review as Wednesbury presents. Lord Cooke in Daly said as much, and suggested instead a less extreme test of whether a reasonable decision maker could have reached the decision. The need for a separation of powers and the avoidance of courts substituting judgments does not require that so narrow a category of decisions be quashed, and indeed Allan argues that there is a risk of courts showing too much deference to administrative decisions with the result that they fail to fulfil their duty in protecting administrative rights. Craig further argues that Wednesbury review can lead to the very judgment substitution it seeks to avoid because courts have enough latitude to decide whether to review on rationality or purpose and relevance that they can effectively decide what tools they will use.

 Although the debate as to the theoretical desirability of proportionality as a general head rages, the courts thus far have shown little inclination to adopt it as such. The House of Lords held in Brind that they would not accept proportionality as a separate head of review in domestic law. This does not mean that there is not still some momentum for the change: both Lord Cooke and Lord Slynn in R v Chief Constable of Sussex ex parte ITF ltd and Alconbury respectively have recognised that proportionality and rationality review can in fact result in the same outcome, resulting in a question arising of whether they even need to be kept separate, and whether it makes sense to do so. Despite this, proportionality is not at present a separate head of review in English law, despite the convincing arguments that it may be a desirable move for the law to take. It is conceivable that in the years to come, if the UK continues to adopt large portions of European law, that the courts will reconsider the decision in Brind, but it seems at present that there is not a great enough momentum for such a change.

 Personally, I don't feel all the fuss is justified. The Wednesbury test is messy, uncertain, and the whole thing is just a bit all over the place since all our ultra vires reasons seem to overlap: being unreasonable is also sometimes acting on irrelevant considerations and it might be completely absurd too, etc etc. Lord Greene recognised that when he 'devised' the test in Wednesbury itself. So why not sweep up a bit, get rid of the strange test we have (which isn't really 'traditional' because it's only been around since 1948) and adopt something we're already using, we already have rules for, and have a nice clear test across the board? I don't really see a problem with more searching standards: we don't control the government enough, and all the arguments for deference seem a bit, well, pointless. Democratic mandate doesn't mean you can start doing nonsensical things, and although some politicians are lawyers, they aren't all, and they probably don't have the same level of expertise as a Supreme Court judge to know what the law they're making is doing. Yes, there's going to be a line somewhere between leave the administrative body alone and interfere for the general good, but I think really we can trust judges to figure out what they're doing by and large. It's not as if Parliament can't pass legislation to reverse decisions anyway. All of this makes me a contextual institutionalist, by the way, according to King's rather long article.



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Textbooks, textbooks everywhere, but not a second to think

Author: The Displaced Academic /

There is a lack of variety in the law degree. Although the law is a time consuming and hugely varied topic of study, it can be frustrating sometimes to be stuck with a choice of this law or that law and nothing else. I find this especially noteworthy when I talk to friends who study the sciences, who get so much choice in what they study. This is at least partly because they're all doing four year courses instead of the standard three that a law degree takes, but I still find it hard to see how Spanish studies are particularly relevant to a Chemistry degree.

 Admittedly, the reason we have such limited scope for choice is because we do a qualifying law degree and that means we have to do the units that every law has to know a bit about like Criminal, Tort, Contract, etc, but when it comes to choosing the two units I do get a say in, the range seems pretty limited. There's one non-law topic on the options list, a couple of historical types of law, and the rest boils down to international law, which is not yet compulsory but probably will be one day, and company and commercial type law. Oh, and family law, but how many people are going to take that, with it's huge content of depressing and misery inducing divorce cases?

 There's the further question of whether taking a non-commercial option is going to do your employment prospects any harm, although somehow I doubt the employer really cares as long as you've got your 2:1 or better and not failed any of the compulsory modules.

 But still, would it really be so hard to offer a bit of economics in the law course? A touch of politics? A sliver of sociology? I mean, learning all about the law is a bit useless if you have no idea about the context. You learn briefly about habeas corpus and how important it is, but don't really look at where it came from historically. You hear about the government trying to control terrorism but are expected to have enough of your own background political knowledge to grasp what exactly the government was/is doing. Plus it would be nice to slow down every now and again and really look into something. But alas, it seems for now that the choice looms between company and commercial law units...

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