DICTA

DICTA
Challenging the Law
2019

1
 DICTA DICTA

A NOT E
F ROM T H E
E DI TOR
Written by
di a n a m . pa n i z z on-pi n e da

DEAR readers, welcome to the 2019 edition of Dicta, the

University of Bristol’s annual law magazine designed to

CHALLENGING
make you consider, question, and challenge the various
debates currently dominating our socio-legal landscape.

THE L AW
This year, the theme throughout Dicta’s pieces is
‘challenging the law’, with articles carefully analysing
and exploring the difficulties our current global legal and
DICTA SHEDS LIGHT political systems must overcome. At a time of extensive
ONTO SOME OF THE legal reform where various social injustices are demanding
to be adequately recognised and confronted, Dicta sheds
MOST PRESSING ISSUES, light onto some of the most pressing issues, discussing
DISCUSSING HOW EFFECTIVE how effective change can occur. I would like to thank
all of our writers and interviewees for their succinct and
CHANGE CAN OCCUR. insightful contributions, as well as our artists for their
beautiful illustrations – you should all be extremely proud
of your achievements.

I also extend my sincerest gratitude to this year’s editorial

committee for their continued dedication and hard work,
ensuring yet another successful edition of Dicta. I hope
you all enjoy reading the magazine!

Sincerely,

di a n a m . pa n i z z on-pi n e da
Editor-in-Chief

2 1
DICTA DICTA

DICTA 2019

EDITOR-IN-CHIEF
Diana M. Panizzon-Pineda

M A NAGI NG E DI TOR
Khush Kotecha

EDITOR S
Ryan Harrison
Katie McPhee
Georgia Eriksen
Joey Marshall
Megan Carver

I N T E RV I E W E DI TOR S
Munkiran Deo
Abdulla Khalaf

ONLINE EDITOR S
Matthew Lu
Mirabelle Tan

WRITERS
Alicia Ramirez Munkiran Deo Harsh Tiwari
Camilla Robertson Joey Marshall Glenn Chua
Issy Riding Seun Matiluko Megan Carver
Abdulla Khalaf Deniz Guzel Zachary Bourne
Eve Rawlings Emilia De Rosa Natalie Wong
Becca Hunt Will Morton Irinna Vavaletskou-Palaiologou
Khush Kotecha Pusint Liamtrakoolpanich Teddy Hunt
Cristina Grosu Concobhar Jolliffe-Grimes Diana M. Panizzon-Pineda
Katie McPhee Eleanor Guven Karla Viinikainen
Jamie Dunkerley Alice Holian Emma Bowman
Abbey Robertson Niamh Greene Iona Holmes
Mayank Tripathi Disha Gowdra

GUEST W R ITER
Charles Martin

I L LUS T R ATOR S
Elle MacDonald
Martha Murdoch
Phoebe Clayson-Lavelle
Becky Messer
George A. Riley
Diana M. Panizzon-Pineda

I N T E RV I E W E E S
Sir Malcolm Evans
Dr. Diego Acosta
Shruti Ajitsaria
Lord Briggs
Dominic Grieve QC MP

DESIGN
Beth McCandlish
monographdesign.co.uk

2 3
 DICTA DICTA

24
6 Dual Nationality 42
On Walls Restrictions in Japan: Jurisprudence: The Blind
ALICIA RAMIREZ Protectionist Ideals and Men and The Elephant
Illogical Hardships HARSH TIWARI
8 JOEY MARSHALL
The Meaning of Marriage 43
CAMILLA ROBERTSON 25 NewLaw vs. OldLaw: A New
When Will Britain Atone Era of Legal Services?
9 for its Greatest Sin? GLENN CHUA
Indefinite Immigration SEUN MATILUKO
Detention: Detained Until 44
Proven ‘Guilty’ 26 An Interview with Lord Briggs,
ISSY RIDING Solidifying the Supreme Court Judge
Conservative Court BY ABDULLA KHALAF & MUNKIRAN DEO
10 DENIZ GUZEL
An Interview with Sir Malcolm 46
Evans, KCMG OBE 28 The Rising Judiciary
Blanket Data Retention:
OU R ON L I N E
BY ABDULLA KHALAF MEGAN CARVER
A Necessity in the Fight
Against Serious Crime?
P L AT F OR M
12 47
The Avastin Decision EMILIA DE ROSA ‘A Snoopers Charter’: Is increased
and its Consequences Governmental surveillance wise
EVE RAWLINGS 29 to combat extremism?
The Meteoric Rise of Monzo ZACHARY BOURNE
13 WILL MORTON

DICTA’S WEBSITE HAS PUBLISHED Tackling Climate Change: 48

Whose Responsibility? 30 The NPCSC’s Interpretation
A VARIETY OF ARTICLES THIS YEAR. BECCA HUNT An Interview with of Hong Kong’s Laws
TOPICS HAVE INCLUDED ISSUES SUCH Shruti Ajitsaria NATALIE WONG
14 BY ABDULLA KHALAF
AS IMMIGRATION, CLIMATE CHANGE, Should Museums 50

AND FAMILY LAW. ALL ARTICLES HAVE Lose Their Marbles? 32 ‘Why Not Me?’ Obstacles
KHUSH KOTECHA Treaties: A Struggle to Girls’ Education Around
BEEN COMPELLING AND OPINIONATED, for Dominance the Globe
16
UNITED BY THE CENTRAL THESIS OF Freedom of Speech
PUSINT LIAMTRAKOOLPANICH IRINNA VAVALETSKOU-PALAIOLOGOU

CHALLENGING THE LAW. LOOK OUT in the Face of Terrorism 34 51

Challenging the Law Big Brother Britain:
FOR MORE ARTICLES THAT WILL BE CRISTINA GROSU
CHARLES MARTIN The Secret ‘Forces’ at Play
PUBLISHED IN THE COMING MONTHS 17 Senior Partner at Macfarlanes TEDDY HUNT
When Will ‘No’ Be Enough?
ON OUR ONLINE PLATFORM: KATIE MCPHEE 35 52
Taxing Times We’re Living In Fathers Who Give Birth
18 CONCOBHAR JOLLIFFE-GRIMES KARLA VIINIKAINEN
www.medium.com/dicta Is UEFA’s Financial Fair
Play Policy Contrary to the 36 53
Rule of Law? Rape as a Weapon of War Environmental Policy,
JAMIE DUNKERLEY ELEANOR GUVEN A Deal Breaker?
EMMA BOWMAN
20 38
#MeToo: One Year On, Hong Kong’s Migrant 54
Now What? Domestic Workers: Victims FGM: UK Victims Deserve Better
ABBEY ROBERTSON of the Two-Week Rule DIANA M. PANIZZON-PINEDA
ALICE HOLIAN
21 56
FinTech: Navigating a New 39 An Interview with
Regulatory Wild West Striking the Right Balance: Dominic Grieve QC MP
MAYANK TRIPATHI Regulating Fake News BY ABDULLA KHALAF, MUNKIRAN DEO
NIAMH GREENE & KHUSH KOTECHA
22
An Interview with 40 58
Dr. Diego Acosta The Surrogate Child: PIP: Victimising the Vulnerable
BY MUNKIRAN DEO A Legal Limbo? from Start to Finish
DISHA GOWDRA IONA HOLMES

4 5
 DICTA DICTA

On Walls
Written by — ALICIA RAMIREZ Illustrated by — ELLE MACDONALD

‘WE are going to build a wall’. A statement, or maybe a not a large enough deterrent for the thousands of migrants
promise, that would send ripples through an already that attempt crossing the border each year.
divided American society and would cause mayhem on This PTD policy was not introduced by a right-
its political system. With such a blatant anti-immigrant wing republican, but by the Clinton administration
rhetoric, few expected Trump to be so successful, especially in the early 90s. It was then aggressively supported
here in Europe where we have had our own share of walls. by Bush, and Obama. Certainly, it is interesting that
The general view outside the United States after the the international community and the American public
election, and of course within the more liberal-minded are only rising their hands in the air in exasperation
sector of the US, was one of bewilderment. This was soon with the rise to power of Donald Trump. Can we
followed by anger and opposition to Trump’s ideology, really say that Trump’s ideas are that outrageous,
especially concerning his controversial policies of anti- after knowing that a wall, maybe not a brick one,
immigration. If Obama’s ‘Yes we can’ will be forever but definitely a physical wall has been in place for
retained in our collective consciousness, so will the rhetoric over thirty years? If one is cynical enough, it may be asked
of ‘building a wall’. where this public outrage was when the number of deaths
What is interesting is the fact that a wall between
Mexico and the US is already in existence. A strong
border stance has been characteristic of the US
WE CANNOT LET
immigrant policy since the 1990s when ‘Prevention
Through Deterrence’ (PTD) was first introduced. OURSELVES BE FOOLED BY
This policy strategy is not too difficult to grasp; it is based THE BLAND LANGUAGE OF
on funnelling migrants attempting to cross the border into POLICY-MAKING.
‘hostile’ areas, especially the desert. Such areas, supposedly,
act as a deterrent to migrants due to their inherent danger.
As the Government Accountability Office on the south of Latin American migrants gradually increased due to the
border strategy stated in 1997: ‘The overarching goal of the effects of the PTD public policy. Where was this public
strategy is to make it so difficult and so costly to enter this indignation when the policy was first implemented?
country illegally that fewer individuals even try’. There might be a silver lining in Trump’s election. The
Nevertheless, it would be a mistake to believe that issues of the US immigration policy are coming to light and
the PTD’s objectives were innocent, and naïve to think are being widely discussed, fostering the possibility for the
that the US government, at any point, was unsure of American public to self-evaluate and examine the process
the results that the PTD strategy would obtain. A 1994 that lead to the acceptability of Trump’s ideas. If there is
United States Border Patrol paper stated, ‘Violence will a lesson in any of this, it is that the values that we hold
increase as the effects of the strategy are felt’. We cannot dear, our respect for human rights, might be inadvertently
let ourselves be fooled by the bland language of policy- eroded. However, there is no excuse after knowledge.
making. The words used only serve to obfuscate the We can either assume our collective responsibility by
brutality of the objectives the policy pursues. ‘Violence’ working to uphold our fundamental values and people’s
can be translated into ‘deaths’ – and in practice, it does. rights, protesting against these unjust laws, or, just as the
The US government were clear – if the number of people desert is used as a scapegoat for migrant deaths, we can
dying and disappearing in the desert increased, the policy shift the blame to people like Trump, and from our moral
was on the right path. However, it is also clear that high ground chant, ‘How can Trump think that’s okay?’
the policy is failing. The dangers of the desert are instead of ‘How did we allow this to happen?’.

6 7
 DICTA DICTA

The Meaning of Marriage Indefinite

Written by — CAMILLA ROBERTSON
Immigration Detention
Detained Until Proven ‘Guilty’
Written by — ISSY RIDING

IMMIGRATION detention laws in the UK see asylum most vulnerable, but because 52% of migrants are actually
TO view marriage as an act of love and devotion to one’s sometimes find their contact practically eliminated seekers and refugees in need of protection being released back into the UK after being detained. They seek
significant other is a view that is difficult to maintain due to most mothers obtaining residential care for treated akin to criminals. Their crime? Not having sanctuary but are met with unnecessary detention.
through the eyes of the law; the sanctity transforms into the children. It may also impact the stability of the correct immigration papers. This routine use of detention suggests that the large
a contractual relationship based on economy. Judges in a child’s life, for example, they may be forced to Immigration detention refers to the process of holding area of discretion afforded to Government is not subject to
the Supreme Court and others are pushing for a no-fault move schools, thus impeding both their education and individuals subject to immigration control whilst they the necessary degree of human rights constraints. The right
divorce system and Parliament is now having discussions their developing relationships with their peers. either await permission to enter the country or before they
about introducing this. However, moving to a full no- Thirdly, the Government is looking for approval to are deported. The power to detain immigrants was created
fault divorce system is arguably too drastic a move; we take away the spouse’s opportunity to contest a divorce. by the Immigration Act 1971 and built on by subsequent PROLONGED ROUTINE DETENTION
should instead reform the five faults to others which are Under Article 12 of European Convention of Human legislation. The UK is the only country in Europe, and one IN PRISON-LIKE CONDITIONS DEPRIVES
less archaic. Rights, everyone has a right to marriage; it would of only a few in the world, with no statutory time limit on
There are benefits for moving to a no-fault divorce therefore be incredibly unfair to take away a person’s
VULNERABLE INDIVIDUALS OF THEIR
immigration detention. For the 30,000 migrants who are
system in England and Wales, Owens v Owens being right to essentially be consulted about their impending detained under this process every year, prolonged routine LIBERTIES AND UNDERMINES
a prime example of such a benefit. In this case, divorce. Of the 106,959 couples that obtained a divorce detention in prison-like conditions deprives vulnerable FUNDAMENTAL HUMAN RIGHTS.
Mrs Owens couldn’t prove the second statutory fact in 2016, approximately 90-95% went through the courts individuals of their liberties and undermines fundamental
that the marriage had broken down due to unreasonable uncontested. The push for reform is supported by this human rights. Constitutionally, the lack of a statutory time
behaviour. The Supreme Court dismissed her appeal and small percentage of contested divorces; individuals do limit runs contrary to fundamental rule of law principles. to liberty, including protection from arbitrary arrest and
she must now stay married to her husband for another not want to get rid of their right to speak out if they Around 50% of those in detention are asylum seekers, detention, is a fundamental right afforded to all persons,
some of whom are survivors of torture, trafficking and and it should only be limited in the context of immigration
rape. Despite the introduction of new policy, particularly detention in certain circumstances. In practice, however,
vulnerable individuals – including pregnant women administrative convenience often takes precedent
IT IS APPARENT THAT MOVING FROM HAVING A FAULT-BASED SYSTEM and children – are still amongst those detained. In 2017 over individual justice. The expense of such human cost is
TO A COMPLETELY NO-FAULT SYSTEM IS TOO MUCH OF A JUMP. alone, 42 children entered unnecessary detention, and entirely unjustifiable.
this can be particularly damaging for children as they The Bingham Centre for Rule of Law outlines
begin to internalise the view they think officials have of safeguarding principles regarding immigration detention.
them – that they are criminals. Furthermore, a 72-hour The principles of ‘brevity’ and ‘maximum’ indicate the
five years to gain a divorce that he cannot contest. It is believe they should keep working on their marriage. time limit on the detention of pregnant women was necessity for migrants to be held for the shortest time
important to acknowledge that having to stay married to From the statistics above, it is apparent that moving introduced in 2016, and while this has been a welcomed possible within prescribed time limits. Nonetheless, Avid
a man you don’t love anymore is taxing and emotionally from having a fault-based system to a completely no- step, it is evident that pregnant women are still detained Detention found that in 2017 20% of detainees were held
damaging, however, the Owens case is an extreme example. fault system is too much of a jump. This is not to say routinely regardless, and not as a last resort: only for more than 2 months, including 225 who were held for
From a more general perspective, there are three that we should not have any change – it is true that the 20% of pregnant women held in detention are more than a year and 31 for more than 2 years, with no
main reasons for challenging proposals for reform. system we have now is a little archaic. However, it has actually deported, most are released back to the UK. idea how long they would actually be held. The uncertainty
Firstly, it is extremely surprising that the Family been suggested that some couples are practically lying The psychological distress of living with such arising from the lack of time limit leaves detained migrants
Justice System would wish to support an easy way to the court to get out of their marriage quicker. This is uncertainty and poor access to adequate mental health feeling more like criminals serving a ‘life sentence’, as one
out of marriage. Marriage and civil partnerships are not only harmful to any children who might be involved, services directly conflicts with the pivotal rule of law migrant for the Freed Voice campaign explained.
concepts that should have more support in law than but also to the nature of the family justice system itself. principle of legal certainty and can lead to devastating There have been calls from MPs and NGOs alike to
divorce and dissolution, otherwise, it appears that Whilst this article isn’t arguing against reform as a consequences. Of the 22 deaths in detention centres since implement a 28-day time limit on immigration detention
such unions have lost their sanctity. There seems to whole, it is challenging the radical effects which such 2002, 7 were suicides. British Red Cross reported that of the which may soon come to fruition – a ten-minute rule
be no devotion in upholding their values. We should a large reform might have upon the system. 26 people they interviewed during that time frame, 4 had motion on the Immigration (Time Limit on Detention)
be supporting commitment instead of creating a more A study taken by Trinder has found no evidence that considered suicide, and 5 had actually attempted it. 2017-2018 Bill has just been heard in Parliament. A
convenient escape from the contractual obligations. supports the claim that fault slows down or prevents Immigration detention is an administrative process, not presumption against detention should be established by
Secondly, there are many views, especially from divorce, so why change a system to such an extent? I a criminal justice procedure. Powers are exercised by Home law, one which invokes a more individualised and humane
Sir Edward Leigh, that moving to a no-fault divorce believe we do need reform in England and Wales, however, Office officials in Government, not judges. Yet, criminals process by placing the burden on detaining authorities
system would increase the number of divorces and we need reform of the five facts to ones that are less out- are afforded the protection of a statutory detention time to prove their case for detention. With the Government
therefore the number of disadvantaged children. dated and slightly more attainable to the majority of the limit that migrants and asylum seekers are deprived of. currently shaping the UK’s post-Brexit immigration
This includes losing contact with other family population rather than taking extreme measures that risk The legitimacy of this process is questionable not only as system, there is no more crucial time than now to challenge
members, especially paternal grandparents who diminishing the sanctity of marriage. the kind of individuals found in detention are some of the the injustice of indefinite detention.

8 9
 DICTA DICTA

IN WHAT WAYS HAVE YOU BEEN INVOLVED IN freedom of religion and belief. Towards the end of the
CHALLENGING THE LAW IN AN IMPACTFUL WAY? period, we began to see once again the politicisation and the
My advocacy of torture prevention is in itself a challenge instrumentalization of religion as a force for nationalism.
to some of the established orthodoxies both in terms of What started off as a drive to ensure individuals in
effectively tackling torture and in human right responses constitutional terms enjoy their legitimate freedoms from
to violations in international law. Traditional methods the state moved into a position where the state, in numerous
are largely focused on holding perpetrators to account, countries, was once again colonising the idea of freedom of
accountability, and challenging impunity. All these things religion and instrumentally using that to bolster its power
are hugely important, but what they all do is presuppose and authority at the expense of other religious groups and

A N I N T E RV I E W
that there has been a violation of a fundamental right. minorities. In a way, we still see some problems around that
I argue that the focus on accountability, reparation, and today: there is still a tendency to redress freedom of religion
holding perpetrators to account, important though it is, or belief by focusing on support for religious majorities in
often fails to really rise to the challenge of ensuring that your own country or supporting religious minorities with

WITH SIR
people’s human rights have actually been respected. So this which you have a religious sympathy in others. That’s not
is my focus over the years: what needs to be put in place to the way to protect freedom of religion internationally
prevent violations from occurring rather than responding because it just fuels those divisions and antagonisms and so
to violations when they have. from my perspective, international community law needs

M A L C O L M E VA N S ,
to be challenged once again.

CAN YOU TELL US ABOUT SOME OF THE BIGGEST

CHALLENGES FACING THE LAW TODAY AND HOW YOU SINCE BEING APPOINTED CHAIR OF THE UNITED NATIONS SUB

KCMG OBE
THINK THESE CHALLENGES COULD BE TACKLED? COMMITTEE FOR THE PREVENTION OF TORTURE, WHAT HAVE
The biggest challenge is that there is an increasing BEEN SOME OF THE CHALLENGES YOU HAVE FACED?
breakdown of many of the assumptions upon which the One of the biggest challenges is getting people to open up
post Second World War international legal order was based. to practical realities. Lawyers are very good at living in a
What we have been seeing increasingly is a move away from world of their own imagination in which things happen
by abdull a kh al af working within the framework of multilateral regimes according to the laws as they see them, the laws as they enact
towards more bilateral working. This then puts the focus them, and the laws as they think they are overseeing them,
much more upon the sovereign nation state as the prime whereas the practical realities are often very far removed.
reactor. In some ways, we have seen a retreat from the high For example, you would assume that the state authorities
watermark of multinationalism towards a state conception are responsible for running prisons. While they may be
of international order. The classic idea has always been that responsible, in so many countries who has real control over
Sir Malcolm Evans, KCMG OBE, is a professor of Public individuals within their state, at the end of the day, pertain what takes place inside the prison estate? Is it the state? No.
International Law at the University of Bristol. Currently Chair to that state, and get their identity from and are loyal to Is it the prison services? No. It is in some ways the detainees.
that state. What was surprising to many in the rise of the Will they ever acknowledge this formally? No. When you
of the United Nations Subcommittee for the Prevention Islamic state was the way it highlighted that many people are talking about prison governance of international levels,
of Torture and an independent member of the Foreign craft loyalties that cut across those traditional assumptions all that is well removed from the discussions.
about statehood. On the one hand, we are seeing a series
Secretary’s Human Rights Advisory Group, he has written of moves away from internationalism towards statehood in
extensively on torture prevention, human rights, and maritime law. the way states are responding to particular issues, moving WHAT ADVICE WOULD YOU GIVE TO STUDENTS ASPIRING
away from big governance and international organisation. TO CHALLENGE THE LAW IN AN IMPACTFUL WAY?
At the same time, their power when they do that is Always be prepared to question the reality of what is going
increasingly being undermined because individuals simply on within the frameworks that you see and try to ask
no longer see their only point of allegiance to the state of yourself what is really causing this to come about. So often,
which they are a member and often look outside the system what we tend to think as lawyers when something is not
of state governance towards the things that motivate and being done in accordance with the law is that the solution
influence them. lies in finding a breach of the law, a legal remedy etc. The
problem that is generating non-compliance is likely to be
somewhere else. The solution is likely to lie somewhere
WHAT WERE THE BIGGEST ISSUES IN 10 YEARS else. If we think of crime as an example, of course you can
ON THE ADVISORY COUNCIL OF THE FREEDOM OF hold people to account for the crimes that they commit,
RELIGION OR BELIEF OF THE OSCE AND DO THESE but what is causing them to commit the crime? The answer
REMAIN TO PERSIST? to that isn’t going to lie within the reaches of the law. It
In the early years, the real problems were trying to persuade is taking what you can learn about society from what the
states which had relatively recently moved out of being law is telling you and putting that into the broader societal
centralist, communist, and atheistic countries to adopt context to see what you can do to produce the sort of
constitutions which properly protected and respected the outcomes that you actually wish.

10 11
 DICTA D IDC ITCAT A

The Avastin Decision Tackling Climate Change:

and its Consequences Whose Responsibility?
Written by — EVE RAWLINGS Written by — BECCA HUNT

IT is no news that in recent years the NHS has faced medication sounds worrying. However, clinicians have WITH the World Meteorological Organisation reporting Existing efforts include the international Paris
financial challenges. In 2015/16, acute trusts ended been prescribing off-label medication successfully for years. a record high in CO2 gas emissions in 2017 – a Agreement 2015, an agreement within the United
the financial year with a deficit of £2.6 billion. In fact, it is so common that G. Caleb Alexander of the level unseen for the past 3-5 million years – and Nations Framework Convention on Climate Change
A significant portion of that budget was spent on drugs University of Chicago Medical Centre claims ‘virtually the rate of climate change sky-rocketing since the (UNFCCC) which sets a limit on the rising average global
and medication with the King’s Trust reporting a spending every drug is used off-label in some circumstances’. Off- industrial revolution, humans should undoubtedly temperature to 1.5˚C above pre-industrial levels and would
increase of around 5%.
 label prescribing is not only common but necessary. be held responsible. However, there seems to be substantially reduce the risks of climate change. Whilst
In September of 2018, a legal challenge launched Doctors can prescribe off-label in all kinds of circumstances: conflict over who needs to act and what the best the Paris Agreement is a step in the right direction and
by pharma companies Novartis and Bayer reached where patients have exhausted other options, where the approach is for tackling this climate emergency. has signatures from 195 states, the UNFCCC does not
the High Court. The challenge was against 12 Clinical condition is rare, or where the licensed alternative is simply Is it for the individual to change their daily routines set legally binding limits or consequences for surpassing
Commissioning Groups (CCGs) with policies to prescribe not viable. The GMC sets out guidelines for prescribing and consumer habits? Or is it up to governments emissions targets. The UK carbon target for 2050 does
off-label as ‘where it would better serve the patient’s needs and world leaders to legislate in a way that prioritises the not match the Paris Agreement and the government
than an appropriately licensed alternative’ or where ‘there climate? knows that. Furthermore, the landmark report released
is a sufficient evidence base and/or experience of using the Individuals can make small daily changes to their lives last year (UNIPCC) warned we have only 12 years for
TO SOME, THE IDEA OF BEING medicine to demonstrate its safety and efficacy.’ Avastin by reducing their meat consumption, cycling to work and global warming to be kept at a maximum of a 1.5˚C, and
PRESCRIBED AN UNLICENSED falls into the latter category. switching off lights, which can collectively make a huge given that the Paris agreement does not start until 2020,
MEDICATION SOUNDS WORRYING. However, there are still risks associated with difference to reducing global emissions. A study by Poore we evidently cannot rely on the weak attempts of world
HOWEVER, CLINICIANS HAVE prescribing off-label. The principle risk is that the & Nemecek in 2018 found that if everyone became vegan leaders.
BEEN PRESCRIBING OFF-LABEL drug has not been tested for the particular group or tomorrow, 15% of anthropogenic global emissions would From here on, we must endeavour to look beyond
problem it is being prescribed for. Rebecca Dresser be wiped out. Consumer demand would surely work its short-term profit and economic growth and appreciate
MEDICATION SUCCESSFULLY
and Joel Frader, MD wrote in The Journal of Law, way up the supply chain and impact policy makers to the intrinsic value of nature to our wellbeing and
FOR YEARS. Medicine & Ethics that ‘off-label prescribing can create ‘greener’ laws and policies. Realistically, however, we economy. The Natural Capital Agenda is a controversial
expose patients to risky and ineffective treatments’. need a more tangible plan – solar panels are still not an strategy which puts a monetary value on ecosystem
An example of this can be found in the US case regarding affordable option for the majority of people. The Brown services, incorporating them into cost-benefit analysis
Avastin (a far cheaper and unlicensed substitute to Bayer’s the drug Fen-Phen. The medications fenfluramine to Green Report 2018 shows that even if we adhere to our of new developments, and allows businesses to quantify
Eylea and Novartis’ Lucentis) to treat wet Age-related hydrochloride and phentermine hydrocholoride were current commitments the global temperature is still set to their impact on the environment. There is huge debate
Muscular Degeneration (AMD). The decision to prescribe FDA approved as treatments for obesity. Following an rise by 3.2˚C – a cataclysmic change that would devastate surrounding Natural Capital as it takes away motivation
Avastin was based on its safe and frequent use elsewhere, its article regarding the pair’s success together, doctors food security, ecosystems and millions of livelihoods. to protect nature in its own right, but it could be the
prescription by private clinicians, its license in the UK as a began prescribing the two drugs concurrently. But The real problem is rooted deep within our social, radical idea the government so desperately needs to start
cancer treatment, and its recommendation by organisations the drugs had not been trialled together and as a result
NICE and WHO for treating eyes. In a landmark decision, many patients ended up with fatal heart valve damage.
the court ruled in favour of the CCGs, but the case is The risk of unaccounted side-effects and heavy lawsuits
THE UK CARBON TARGET FOR 2050
already controversial, dividing the UK pharmaceutical must always be considered when deciding to prescribe
industry, lawyers and NHS leaders alike. off-label. Some question whether they are risks DOES NOT MATCH THE PARIS AGREEMENT
The crux of the challenge was based on EU worth taking simply to cut costs. AND THE GOVERNMENT KNOWS THAT.
Directive 2001/83/EC (the Medicines Directive). Essentially, it becomes a balancing act between
The claimants alleged that the directive required Avastin to risk and reward. Doctors must prescribe off-label
have ‘market authorisation’ by being licenced for the treatment in accordance with their duty to act in patient’s best economic and political frameworks. As individuals, we winning this battle. Individuals can come together to
of wet AMD in order for the CCG to fund its prescription interests. With regards to CCGs, their duty is to feel the little changes we make are meaningless in the put pressure on governments in the form of new activist
for that purpose. Licensing involves the clinical testing and co-ordinate and commission cost effective and face of what those at the top are doing. Why should groups like The Extinction Rebellion, whose recent
confirmation of a drug as safe and efficacious for a specific use. clinically effective health care, benefitting as many we sacrifice our 99p saver menu cheeseburger when, protests in London led Mayor Sadiq Khan to declare a
It confirms safety and dosage and therefore licensed people as possible. Therefore, neither doctors nor according to a 2018 report by Climate Transparency, ‘climate emergency’ and argue that ‘central government
medications are normally preferred. However, this CCGs are allowed to put patients at risk simply to the G20 nations are still spending £114 billion of is dragging its feet and we need urgent government action
does not mean unlicensed drugs cannot be prescribed. reduce expenditure. However, before changing their public funding on fossil fuel subsidies per year? and funding’.
The NHS website defines ‘off-label’ medication as medicine policy, the NHS was spending around £244 million There is a desperate need for worldwide governmental Ultimately, there is no clear answer on how
that ‘isn’t licensed for treatment of your condition’ but has ‘a a year on the licensed ranibizumab the second highest action to implement climate-friendly laws and policies via we should combat this issue. This is why we need
licence to treat another condition and will have undergone amount for any drug, and 10-20 times more than a top-down approach. The government must hold large to combine all efforts, bottom-up and top-down,
clinical trials for this’. Avastin is an excellent example of this Avastin. Some may consider it correct of CCGs, corporations to account for their unsustainable conduct to push for change and reconsider the way in which we
as, while licensed as a cancer drug, it has not been confirmed if not their duty, to take radical price differences through the enforcement of legally binding policies, value our planet. Individuals must unite internationally
as a treatment for AMD. like this into consideration when setting policies subsidising low-emission alternatives and taxing fossil to pressure our world leaders to prioritise the environment
To some, the idea of being prescribed an unlicensed on prescription.
 fuels to invest in the green energy sector. and create a safe and sustainable future for us all.

12 13 13
DICTA DICTA

Should Museums
Lose Their Marbles?
Written by — KHUSH KOTECHA Illustrated by — MARTHA MURDOCH

PRICELESS artefacts from bygone eras lie encased in return one of the most important monoliths from the
the halls of some of the grandest and largest museums island. Unlike the Easter Island case, many of the current
in the world. These pieces are seen by millions each arguments for repatriation are built on unstable grounds.
year, one of the few remaining connections we have Modern nations have tenuous connections to those
with civilisations that long since turned to dust. ancient cultures, borders have been redrawn countless
The descendants of those ancient civilisations have times, people have migrated, and identities have merged
embarked on a mission to retrieve what they believe over time.
to be rightly theirs. Where should these artefacts go? I feel it is more beneficial to keep the works where they
The two sides in this dispute are the predominantly are, as they are being viewed and appreciated by many more
Western countries where these artefacts are housed, people than they would if they were to be repatriated. For
against the countries where they originated from. The example, were the Elgin Marbles to be returned to Greece
debate has been raging for many years, however, it has and housed in the Acropolis museum, the number of
gained prominence through recent efforts by the Greek people who would view them would significantly reduce
government to repatriate the Elgin Marbles, Greek from 6 million people to 1.5 million. The unique cultural
sculptures which were originally part of the Parthenon in benefit of visiting museums to view a vast collection of
Athens. There are two facets to this discussion, legal and artefacts from different civilisations would be lost if they
moral. were all returned to their place of origin. Furthermore,
The legal case for returning artefacts is limited. the quality of museums may put priceless items at risk.
In Her Majesty’s Attorney General v The Trustees of the In Brazil, experts had raised complaints about
British Museum [2005], the British Museum was legally the dilapidated state of the national museum.
prevented from returning drawings looted by the Nazis. In September 2018, the museum was engulfed in a horrific

MODERN NATIONS HAVE TENUOUS CONNECTIONS TO THOSE ANCIENT CULTURES,

BORDERS HAVE BEEN REDRAWN COUNTLESS TIMES, PEOPLE HAVE MIGRATED,
AND IDENTITIES HAVE MERGED OVER TIME.

This is because the British Museum Act 1963 s.3(4), which fire that destroyed one of the biggest collections in South
protects works, cannot be overridden by ‘moral obligation’. America. This in itself is not adequate excuse for non-
The only way an artefact can be returned is through repatriation, but it highlights the importance of sufficient
new legislation allowing it. Therefore, the chance of the funding for preservation and maintenance, which is more
Greek government winning back the marbles in court forthcoming in developed countries.
is slim. However, I feel that museums should loan In conclusion, people who are unable to visit
these priceless pieces back to their country of far flung corners of the world would be less likely
origin often to allow them to be appreciated by the to broaden their cultural mindset and learn about
descendants of the civilisations that made them; distant civilisations if museums only housed domestic
this does not contravene the British Museum Act. artefacts, however, museums should continually
There is a case for museums to voluntarily return loan back pieces to their country of origin.
works, as ultimately many of the objects in a museum’s Through viewing the Elgin Marbles, one gains
trove were pillaged or looted from the country or origin. a deeper appreciation about Greek culture and
Many of the inhabitants of these countries will likely never history. The opportunity to compare them against
have seen the Rosetta Stone or the Elgin Marbles, and as the monumental achievements of other cultures side
descendants of those civilisations, they stake a moral claim by side is one of the enduring benefits of museums
to take ownership of these works. These items are a source that make many people, like myself, go back time
of national pride and the symbol of cultural identity for and time again to view works that still enthuse
many people. The Governor of the Easter Islands told us as much as they did when we saw them for
the British Museum ‘you have our soul’ by refusing to the first time.

14 15
 DICTA DICTA

Freedom of Speech in When Will

the Face of Terrorism ‘No’ Be Enough?
Written by — CRISTINA GROSU Written by — KATIE MCPHEE

THE Western world has not been the same since the Prevent Strategy issued in 2011. The main aim of Prevent
terrorist attacks of 9/11. In an attempt to protect is to thwart the radicalisation of potential terrorists and
society from similar atrocities, governments have therefore counter further attacks. It purports that in order
been imposing significant counter-terrorism laws that to stop terrorism we need to respond to the ideological VICTIM blaming is an oxymoron in itself. The word November 2018, an Irish case sparked public outrage when
conflict with basic human rights. Freedom of speech challenge of terrorism. However, strategies like Prevent risk ‘victim’ is inherently suggestive of innocence and a lawyer asserted that the style of the victim’s underwear
– a fundamental right as expressed in Article 10 of creating a divided society in the UK, one in which Muslims a person to whom harm has been done. To blame, could be considered a factor in the finding of consent.
the Human Rights Act 1998 – has often been treated and other ethnic minorities are alienated. For example, the however, would be to ascribe responsibility for such The lawyer claimed that ‘you have to look at the way she
as a potential threat that must be combatted, and, Prevent strategy puts pressure on schools and universities to a wrong to a person who is deemed to be at fault. was dressed’; do we really have to do this? The answer is
in the UK, a number of government measures identify students that show potential to become radicalised, To act in a way which conflates these terms would be simply and unequivocally: no. It is not legally necessary to
have been implemented to minimise the impact and this has an undeniably grave effect on the inclusion of fundamentally irrational. Despite this, the practice has evaluate the connotations of a person’s clothing, a person
of potentially damaging opinions being expressed. Muslim pupils in schools because of its stigmatising effect. become increasingly common within society, playing into who is not even on trial themselves. Clearly a change in
This raises a troubling question: has the government gone It not only creates an unhealthy environment for damaging stereotypes and stigmatising open conversation. legislation can only take us so far. Until victim blaming
too far in restricting freedom of speech? these children to grow up and develop in but it could also, For the law to absorb the practice of victim blaming to has been eradicated as a social practice, we cannot expect
Freedom of speech plays an essential role in a as a result of feeling isolated and marginalised, leave them any extent would diminish the protective function of the the law to adequately protect vulnerable parties.
democratic society. It is key to preserving human vulnerable to becoming radicalised – the very thing Prevent law immeasurably. Nonetheless, it is still possible to find
dignity and encouraging growth and development. is trying to avoid. authority for this practice, one which is ultimately hinged
It allows people to express their thoughts, practice their Another disadvantage of the Prevent strategy is that upon absurdity.
religions and demonstrate their beliefs – all of which makes it can discourage debate on controversial issues and stifle The idea of victim blaming is fortified by myths IT IS IMPOSSIBLE TO IGNORE
society more tolerant and less discriminatory. The success free speech in schools. Rights Watch – an organisation which have evolved from harmful female stereotypes. An THE GENDERED UNDERTONES
of the suffragette, feminist and the civil rights movements that aims to make sure that the UK government is example of such a myth is perpetuated by the current law OF VICTIM BLAMING.
are just a few examples of where freedom of speech has compliant with human rights and international law – on drunken consent. In Bree, it was held that drunken
encouraged justice to persevere. But a growing sense of has even called for the abolition of the Prevent strategy consent is, in fact, still consent, although this ability to
emergency has become a threat to this fundamental right. within educational institutions over concerns that the give consent will evaporate at an unspecified point before
The UK has been a target for terrorist attacks in strategy has created a culture of suspicion through its loss of consciousness. The trend of issuing warnings The highly controversial case of Ched Evans involved
the past few years at the hands of radicalised individuals bizarre promotion of ‘fundamental British values’ that has removed the onus from the guilty defendant in a the use of a victim’s sexual history in a criminal trial
(the attacks on Westminster, Manchester, and London has left children scared to freely express their own views way which is unlike any other offence. Wallerstein has in order to prove that she had behaved in a way which
Bridge, to name a few). Statistics show that between 11 through fear of being targeted by teachers and classmates emphasised the disparity of treatment between different was consistent with the finding of consent. Section 41
September 2001 and 31 March 2016, there were 54 deaths assuming them to be at risk of being drawn into areas of law, highlighting how we would not prevent of the Youth Justice and Criminal Evidence Act 1999,
in Great Britain as a result of terrorism. In 2017 alone the terrorism. There is also a risk that these toxic attitudes thieves from receiving punishment simply because a although existing to prohibit irrelevant examination of
spread into family life as well. Parents can be scared to door was recklessly left unlocked by a homeowner. Why sexual behaviour, permits the use of history under very
discuss sensitive topics and share their own view of the is the law not equally willing to protect victims, even if specific exceptions. In reality, such evidence should bear
IN 2017 ALONE THE UK world with their children through a similar fear that the they have ‘recklessly’ become intoxicated? It seems that no weight in a criminal trial such as this. This decision
BECAME THE COUNTRY THAT family may be branded as ‘radicalised’ if such accounts legislators are far more inclined to protect vulnerable sets a dangerous precedent, essentially allowing previous
SUFFERED THE HIGHEST are misreported by the children or misinterpreted parties in situations where more tangible, material harm partners to attack the character of the victim, heightening
by authority figures. has occurred. As Wallerstein further exhibits, the law does already devastating consequences.
TERRORIST-RELATED LOSS Protecting society from terrorism is a monumental not permit a person to drive or even give a police interview How can we expect victims to continue to come
OF LIFE OUT OF THE ENTIRE task, but it is one which should involve carefully whilst under the influence of alcohol; it is difficult to see forward with reports of sexual assault when we repeatedly
EUROPEAN UNION. balancing the threat of counter terrorism with the right why the law would assume that a person in the same state discredit and humiliate them? In this way, victim blaming
to freedom of speech. Strategies like Prevent show too would be capable of giving adequate consent. continues to pervert the course of justice; every decision
much potential to divide society when they should be The next of these fictions is an embodiment of both which sees a victim facing a trial of their own will
UK became the country that suffered the highest terrorist- encouraging cooperation. The government needs to find traditional and modern sexism, rooted in misogynistic discourage the next from ever beginning proceedings. We
related loss of life out of the entire European Union, with a way of pre-empting terrorism and radicalisation without paradigms. It is not by any means true that sexual assault is must begin to take these issues as seriously as any other
36 people killed. compromising fundamental human rights and without an exclusively female experience, however it is impossible aspect of the law. We must accept that emotional harm
In order to prevent further attacks, the UK government alienating the members of the British population. The to ignore the gendered undertones of victim blaming. is as equally significant as financial or physical harm,
has adopted measures that threaten freedom of expression government needs to change its strategy for eradicating Not only is it suggested that a woman’s clothing might regardless of our ability to quantify it. Finally, we must
and other human rights. One of the most controversial terrorism, maintaining the basic right of expression in be responsible for putting her at risk of sexual assault, treat the guilty for what they are, and reject the warped
parts of the government’s counter terrorism policy is the society. but it is also often equated to the provision of consent. In logic of victim blaming.

16 17
 DICTA DICTA

Is UEFA’s Financial
Fair Play Policy Contrary
to the Rule of Law?
Written by — JAMIE DUNKERLEY Illustrated by — PHOEBE CLAYSON-LAVELLE

IN 2010, UEFA (Europe’s football governing a deal that would reduce sanctions if future compliance
body) introduced their Financial Fair Play policy. was promised and fulfilled. For example, Manchester
This sought to reduce clubs’ debt and ‘improve the City, in 2015, reached a settlement reducing their fine
overall financial health of European club football’. of €60million to €15million. Separately, AC Milan have
The legislation had good intentions, but one consequence been able to overturn their ban due to improvements in
of its implementation is rarely mentioned: its failure to the club’s finances. It is within UEFA’s interests to allow
uphold fundamental principles of the rule of law. for large clubs to not be heavily sanctioned, permitting
FFP forces teams to meet its ‘break-even’ requirement: their participation in UEFA’s flagship tournament the
spending and revenue must be balanced. Failure to do so Champions League, revenue of which in 2018/2019 is
results in fines, transfer bans and European competition expected to be around €2.8billion. The FC Sions and
expulsion. Financially, there is little doubt that the laws Dinamo Bucharests of the world simply do not have
have worked. Net debts of clubs have fallen by almost 30% the leverage to negotiate settlements with UEFA that
since its introduction and across Europe’s first divisions Europe’s elite possess. Financially, they do not have
there is a €0.6billion profit – a huge rise from the €1.7bn the backing of wealthy investors- or countries in PSG’s
loss in 2011. case- to guarantee future compliance with FFP. They are
That being said, the policy’s enforcement has led to forced to accept whatever punishment UEFA dishes out
the law being applied unequally and unjustly across the to them.
clubs who have failed to meet its requirement. One of
A.V. Dicey’s requirements for the rule of law is that there
should be equality before the law, whilst judges such as
Lord Hewat CJ stated that ‘justice should not only be done JUSTICE IN THE FIRST
[…] but be seen to be done’. Some of the smaller clubs in
INSTANCE IS NOT SEEN TO BE
Europe who have felt the wrath of UEFA after missing the
requirements of FFP, would strongly dispute whether the APPLIED PROPORTIONATELY.
governing body has followed these two guiding principles
of the rule of law.
Their argument stems from the great disparity between
how lesser clubs are punished by UEFA and how ‘the mega- FFP might have had altruistic intentions, and
clubs’ are. Teams such as FC Sion and Dinamo Bucharest financially the effects have been positive; however
have been banned from European competitions for 2 and legitimate questions could be raised regarding its
3 seasons respectively. Juxtaposed to such occurrences is upholding of the rule of law. It is clear that there is not
the fact that no super clubs, such as PSG and Manchester equality under the law set out by UEFA. In turn, the
City, have come close to receiving such heavy punishments failings have created an oligopoly in which those at the
despite their spending receiving UEFA’s attention on top can manoeuvre out of punishments handed to them
numerous occasions. PSG spent nearly €400 million on with smaller clubs suffering. By not following the rule of
Neymar and Kylian Mbappe alone. law, clubs could become above the law and abuse power,
The closest a heavyweight has come to being treated in a creating further disparity between clubs. Ultimately, this
harsh manner has been AC Milan who received a ban. could lead to another claim that FFP is contrary to EU
So why is there a disparity as to how FFP is competition law. UEFA should make it easier for smaller
applied? Firstly, justice in the first instance is not seen clubs’ punishments to be limited, or make it more difficult
to be applied proportionately: FC Sion were banned for the big clubs to do so. Whilst the context of football
for failure to disclose debts of €950,000 whilst AC was probably not what Dicey had in mind when he called
Milan’s original ban was shorter despite having a deficit for equality before the law, FFP has created the exact
of €100million over the FFP limit. Furthermore, since legal sporting dystopia that he would have vehemently
2015, UEFA altered FFP to allow for clubs to negotiate opposed.

18 19
 DICTA DICTA

#MeToo: One Year On, FinTech: Navigating a New

Now What? Regulatory Wild West
Written by — ABBEY ROBERTSON Written by — MAYANK TRIPATHI

FINTECH is a rapidly growing industry resulting from the FinTech banks do not have physical branches to carry out
synergy between the finance and technology sectors. the usual due diligence.
LAST Autumn, women from Hollywood began to is important to acknowledge the moment when this Businesses have focused on using various types of Furthermore, is the government equipped with an
speak out. Then tens of thousands of women and campaign gathered momentum – the Weinstein scandal. technology such as artificial intelligence and data analytics adequate understanding of the technological component of
men came forward to share stories of their own More than 80 women across the film industry uncovered a to provide customers with financial services like automated Fintech in order to properly legislate on it? It is important
experiences of sexual assault. One year on, it appears history of sexual abuse from the film producer spanning a savings or investing advice. FinTech developments have for governments to work closely with industry leaders in
that an international movement sparked by a single period of at least 30 years, and it looks like his time is finally resulted in the fascinating scenario where start-ups like order to ensure an adept understanding of how the sector
abuser could be the most distinguished force for up. However, despite the successful trial against Weinstein, Monzo and Chip are now looking to provide services that functions and legislate accordingly. Given the broad range
driving equality since women’s suffrage. However, it cannot be ignored that Trump and Kavanaugh – two have traditionally been left to the domain of large banks. of activities that fall in its ambit, Fintech regulation may
the fate of the #MeToo movement hangs in the balance. men accused of similar sexual misconduct – are afforded After the 2008 crash, these start-ups have been require the government to think differently from how
Whilst there has been a significant shift in attitudes, the the most significant powers of law and justice in America. welcomed in an effort to boost competition and efficiency it has traditionally considered regulating the financial
justice system has consistently failed to protect victims Two men that embody the phrase ‘toxic masculinity’ are in the banking sector. The government has also expressed services market. There are no longer “banks” that provide
of sexual assault and the Government too has failed to not only tolerated but celebrated by many, and in positions its encouragement in making London the FinTech capital a one stop solution providing savings, investing and other
produce tough legislation that will result in real, lasting to control fundamental justice reform in the USA. of the world. The Financial Conduct Authority (FCA) services. Therefore, the government may have to move
cultural change. 2018 may have been a great success for feminist recently launched ‘Project Innovate’, which includes a away from a regulatory model based on institutional
Take the outcry which followed a 17-year-old girl’s activism, but we must not be clouded into thinking regulatory ‘Sandbox’ where businesses can test if they regulation and move to one that regulates activities as a
underwear being used as evidence against her in a recent lasting legal reform is a specifically female or male issue meet regulatory guidelines, listed in the FCA Handbook, whole.
Irish rape trial, for example. Legally, the defence barrister – it is a people issue. In order to successfully advocate for which all firms providing financial services are supposed Finally, given the cross border and inter-connected
did nothing wrong, but a system of trial and justice that judicial reform, men and women need to be united in their to comply with. These guidelines purport to regulate the nature of the industry, regulators and governments need
allows such a violation of victims is clearly backwards. It attempts to expose abusers and protect victims. The recent financial sector by supervising insurance, mortgages and to work with each other in coming up with innovative and
other banking activities under the aegis of overarching effective solutions. Simply following the FCA’s model may
principles such as financial prudence and managing be putting all the proverbial eggs in one basket. Ensuring
conflicts of interests. The Sandbox model is now also being communication between regulators would also help to
IT APPEARS THAT AN INTERNATIONAL MOVEMENT SPARKED BY A SINGLE ABUSER COULD BE tested abroad in Singapore and Australia. minimise systematic risks and prevent another 2008-like
THE MOST DISTINGUISHED FORCE FOR DRIVING EQUALITY SINCE WOMEN’S SUFFRAGE. However, problems continue to remain. For example, crisis.
crypto currency and blockchain technology have posed to
be a challenge for regulators ever since Bitcoin highlighted
is sad that it takes devastating miscarriages of justices like Gillette advert addressing toxic behaviour like bullying and the extremely volatile nature of crypto currencies.
this one for ministers to call for a reform of the courts, and sexual harassment is an excellent example of this. Although Regulators have had to grapple with questions of bringing FINTECH REGULATION MAY
even then, only as a response to public debate and protests the advert sparked outrage from many activists as being more stability to the market and ensuring transactions are REQUIRE THE GOVERNMENT TO
flooding the country. Evidently public sentiment is ahead ‘anti men’, this is at least a step in the right direction to secure – crypto currencies being only a small piece of the THINK DIFFERENTLY FROM HOW IT
of legal and political reform in this area. The initiative to unite the sexes and change social norms for the better. It extremely large Fin Tech puzzle. Given the new technology HAS TRADITIONALLY CONSIDERED
stop putting women on trial for their choices and to start is crucial that older white men, those normally opposed to and rapid pace of development, regulators have been hard
pressed to put in place effective regulatory guidelines. In
REGULATING THE FINANCIAL
holding perpetrators accountable for their actions is long this campaign, realise the #MeToo movement is also about
overdue. them and are part of the change because it is their voices order to do so, there are certain things that the FCA and SERVICES MARKET.
Whilst public sentiment is encouraging some people that have significant power to motivate reform. other regulators need to keep in mind.
to come forward, the justice system must seek reform that One year on and #MeToo has served a profound Ensuring consumer protection should be a key priority.
encompasses compassion and protection for victims if the purpose. The Weinstein allegations have highlighted a If there are no checks and balances, the technology may
movement is to succeed. When the justice system allows broader issue of sexual misconduct, and a challenge to develop too fast and regulators could have a hard time The expansion of the Fintech industry represents the
trials that subject victims to public embarrassment and cultural norms and attitudes (notably through social keeping pace. This would result in consumers easily falling latest stage in an ever-evolving financial market and it is
scrutiny, it is no surprise that more victims are not coming media) has seen a rise in the number of victims coming prey to malicious schemes and fraud. Revolut, a banking imperative that the government acts swiftly in order to
forward. A culture that encourages people to almost forward. It is crucial that the law match public sentiment start-up, has recently reported that it suspects certain keep up with the pace of technological development. It is
instinctively jump to the conclusion that an accusation is on this issue, as without significant change to our justice accounts being used for money laundering. One way of important to make sure that innovation takes place in a
false and then proceeds to put the victim on public trial is system there is little more the movement can do except protecting consumers would be to ensure that all new policed regulatory framework where the borders are well
undermining the movement in its entirety. become another battle in our modern culture wars. The FinTech banks are covered by the Financial Services and defined. A well-regulated sector would boost consumer and
The future of any remarkable change looks dismal first year of #MeToo has been about awareness, the second Compensation Scheme. Also, there should be additional business confidence, resulting in efficient competition and
– even in the USA, the country where this all began. It year needs to be about justice. ‘Know Your Customer’ requirements given that most protection from systemic risks.

20 21
 DICTA DICTA

CAN YOU TELL ME A BIT ABOUT YOUR NEW BOOK? 2015. The impact of this is that most of them are migrating
South American countries are amongst the oldest countries to other South American countries. The main challenge
in the world. In my new book, I explain how these countries right now is to make sure those Venezuelans have access to
have decided since the very beginning who was going to residence permits so that they can work and have access to
be the national and who was going to be the foreigner. basic rights such as education and healthcare in the other
When new states are created, there are three things that South American states.
should be established: firstly to define the territory, then
to decide how you will govern yourself, and finally who
will be the national and the foreigner to make up the YOUR INVOLVEMENT IN THE PROMINENT, 5-YEAR RESEARCH
population. In my new book I look back in history to PROJECT ‘PROSPECTS FOR INTERNATIONAL MIGRATION
analyse ten countries in South America and how they have GOVERNANCE’ (MIGPROSP) IS FASCINATING. WHAT DID YOUR
– throughout 200 years – answered that question of who is ROLE AS CO-SUPERVISOR AND COLLABORATOR INVOLVE?
going to be the national and who is going to be foreigner MIGPROSP is an externally funded project by the

A N I N T E RV I E W
through constitutional, immigration and citizenship law. European Research Council who have granted us €2.1
million for 5 years. My role has been mostly to look at
migration governance in South America and to understand
HOW DOES THE ‘FOREIGNER’ IN SOUTH AMERICA why policy makers in South America choose to make

W ITH DR. DIEGO

DIFFER TO US AND WESTERN EUROPEAN MODELS? certain decisions when they are regulating mobility and
This is one of the questions I answer in the book. By and migration. This is our main goal and we are looking at
large, South America has presented itself as being more four regions in the world: North America, South America,
open towards foreigners – and that is true to a certain Europe and Asia Pacific. Mostly, the methodology has

ACOS TA
extent. However, there have historically been many involved interviewing and meeting with policy makers
exclusions as well which we could also see in Europe or the to understand the motivations behind their actions when
USA, for example based on race or class. legislating or adopting policies about migration.

by munk ir an deo WHAT WAS YOUR MOTIVATION FOR TAKING PART

IN THIS RESEARCH?
IN THE UK THERE IS In general – including this project and my wider research
MORE TALK ABOUT THE – I am passionate about immigration and mobility as it is
something that has happened throughout history and will
Dr. Diego Acosta specialises in European and Migration Law IMPACT OF BREXIT ON continue to do so. I am interested in looking at the different
economic, social, legal and the political perspectives on
at the University of Bristol. In 2018 he published his latest EU CITIZENS RESIDING migration. I am truly fascinated by mobility and migration
book entitled: ‘The National versus the Foreigner in having lived in 10 countries and now for the last few years

South America: 200 Years of Migration and Citizenship Law’. IN THE UK, AND THERE as an EU citizen it will be interesting to see what will
happen in light of the developments with Brexit.
IS LESS TALK ABOUT
THE IMPACT OF BREXIT BEING STUDENTS IN THE UK, WE OFTEN FOCUS ON THE EFFECT
OF BREXIT ON BRITAIN; WHERE WILL THE GREATEST IMPACT
ON THE ESTIMATED 1.2 OF BREXIT BE SEEN FROM THE PERSPECTIVE OF THE EU?
It is difficult to know with the great uncertainty
TO 3 MILLION BRITISH surrounding Brexit. One important issue is perhaps that in
CITIZENS WHO ARE the UK there is more talk about the impact of Brexit on EU
citizens residing in the UK, and there is less talk about the
RESIDING IN THE OTHER impact of Brexit on the estimated 1.2 to 3 million British
citizens who are residing in the other 27-member states.
27-MEMBER STATES. There is less discussion on how Brexit will change their lives
because they will inevitably lose different rights that they
had and took for granted. It is uncertain depending on the
negotiations and the outcome of Brexit that will decide
what their rights will be. Right now, you could move to
IN LIGHT OF THE VENEZUELAN POLITICAL CRISIS, WHAT 27 other countries in Europe to study, work or simply to
IMPACT HAS THIS HAD ON MIGRATION IN SOUTH AMERICA? live. After Brexit that will possibly change, and this will
With the political and economic crisis in Venezuela, have an impact of those who have not yet moved but could
around 3 million Venezuelans have left their country since potentially move in the future.

22 23
 DICTA DICTA

Dual Nationality When Will Britain Atone

Restrictions in Japan: for its Greatest Sin?
Protectionist Ideals and Illogical Hardships Written by — SEUN MATILUKO

Written by — JOEY MARSHALL

FOR many people, the concept of banning dual nationality presenting them as inferior or even false citizens. It is surely
may at best appear odd and at worst seem exclusionary. unjust that a factor that a person cannot control, parentage,
Nevertheless, in Japan hostility towards dual nationality may directly prevent a Japanese person from possessing THE Transatlantic Slave Trade was one of the worst late 2018. This is particularly disturbing as there are many
remains prevalent. Japanese law prevents its citizens aged citizenship and receiving societal acceptance. atrocities committed by humankind. Scholars have British citizens who are descendants of the Transatlantic
22 and above from possessing multiple nationalities. This In a nation that has traditionally upheld inherently called it ‘The African Holocaust’ or ‘Maafa’, a Swahili Slave Trade meaning that Black British taxpayers were
legislation reflects an out-dated vision of an isolated Japan homogeneous values, to a certain degree this ‘one person, term meaning ‘Great disaster’. For over 300 years, Black indirectly compensating the people who owned their
that causes both an unjust social hierarchy and xenophobic one nationality’ principle is understandable. Notably, Africans were sold to European traders and transported ancestors. Certainly, in the light of the recent Windrush
stigma towards its own citizens. social and historical factors have resulted in Japan across the ocean to the ‘New World’, including the scandal it seems that our government is still keen to exploit
Indeed, in a practical sense, Japanese nationality formulating a strong distinction between those who Americas. Many influential slave traders and owners were the labour of Black people whilst paying them no regard.
law may not appear to be so restrictive. This is because represent a Japanese standard and those who do not. This from Great Britain with the father of Prime Minister Slavery had a lasting effect on how all Black people
although Section 1 in Article 11 of the Nationality Law dates back to the Tokugawa Shogunate 1638 isolating Gladstone himself owning nine plantations and 2,508 are viewed today. Many Black professionals have noted
prevents Japanese nationals retaining foreign citizenship Japan from the outside world and deporting mixed- slaves. There were many major ports in the UK and 37 that they have often been dismissed as cleaners rather
past the age of 22, this area of law is largely unenforced. In race Japanese to Macao and the Philippines, due to fears slave ships travelled from Bristol each year. The city than acknowledged for being doctors, mathematicians
fact, Japanese nationals rarely, if ever, have their Japanese of the spread of Catholicism. Equally, the traditional quickly became wealthy due to slave-produced sugar. The or other highly skilled professions. During slavery, state-
citizenship revoked on the grounds that they are dual mentality derived from Japanese feudalism, of loyalty cotton production that led to the birth of the industrial sanctioned violence was permitted against all Black people
citizens. Consequently, dual nationality falls under the and subsequently loyalty to an ethnically homogeneous
‘don’t ask don’t tell’ policy, with mere symbolic substance. nation, cannot be overlooked. Within this ideology, one
cannot be truly loyal to Japan if one is a national elsewhere.
The impact of both the Tokugawa Shogunate and BRITAIN GOT RICH OFF THE BACK OF THE TRANSATLANTIC SLAVE
the principles of loyalty to the nation have TRADE BUT THE BLACK AFRICAN CHATTEL SLAVES CERTAINLY DID NOT.
THERE IS LITTLE DOUBT THAT incrementally developed over time, configuring and
JAPAN’S CURRENT CLOSED MENTALITY reifying the ‘true Japanese’ person. Consequently,
TOWARDS DUAL NATIONALITY it becomes difficult for a citizen who does not revolution in Manchester in the 1750s was made possible and we continue to see this today, particularly in the UK
IS REFLECTIVE OF A PAST represent this classic homogeneous reification due to the cotton picked by slaves in the ‘New World’ where Black people are often killed with impunity whilst
WORLDVIEW OF ‘EXCLUSIVE to be accepted into Japanese society. and soon became Britain’s greatest export. Britain got in police custody, with police facing no ramifications for
ALLEGIANCE’, UNDULY CARRYING There is little doubt that Japan’s current closed rich off the back of the Transatlantic Slave Trade but the their actions.
mentality towards dual nationality is reflective of a past Black African chattel slaves certainly did not. To this day, Despite all of this, the UK has always refused to pay
THROUGH XENOPHOBIC STIGMA.
worldview of ‘exclusive allegiance’, unduly carrying Britain has refused to pay reparations to descendants of reparations and in 2015 David Cameron declined to
through xenophobic stigma. In the modern world, Black African chattel slaves despite increasing calls to do apologise to descendants of slaves, claiming that they
the factors that determine a person’s sense of identity, so. should ‘move on’. However, there is a legal precedent for
However, the main concern does not revolve around belonging and allegiance to a country transcend race Britain certainly has a moral obligation to pay the reparations. Reparations have been paid to many groups for
the legal impact of this legislation. Rather, the controversies and ethnicity. In effect, Japan is a nation with nearly one descendants of Black African slaves, especially considering past atrocities, including Jewish people after the Holocaust,
centre more on the social discrimination that those affected million dual nationals and 2.5 million foreign residents; the sheer inhumanity of how these slaves were transported Black people in South Africa following Apartheid and
by this law face. This issue has most recently been highlighted the historical demographic of Japan has drastically across the Atlantic in horrifying conditions where they Japanese-Americans following their forced internment in
by the treatment of the former leader of the opposition changed. Despite this development, Japan’s legislation would often have to sit in urinal and faecal matter before America. Although there are those who claim it would be
Democratic Party, Murata Renho (Renho). Born to a often remains confined to its past ideologies. As a result, being sold and abused. Many slaves died whilst crossing the too difficult to locate all of those Black people descended
Taiwanese father, Renho had dual nationality at birth. Her Japan’s present-day laws on dual citizenship are based on Atlantic and whilst being made to work, with only 83,000 of from chattel slaves, the reparation money could be held on
supposed failure to revoke her Taiwanese nationality caused out of date policies on isolation and ethnic homogeneity the 600,000 enslaved Africans who were taken to Barbados trust by the government for those those who are able to
national controversy over her legitimacy as ‘100 percent that have become significantly unsustainable with the surviving the end of the slave trade. Slaves were viewed locate their slave ancestors. Alternatively, reparations could
Japanese’. To diminish any further marring of her claim intricacies of modern Japan. as something less than a human being, and when Britain be given to those states most impacted by Transatlantic
to becoming prime minister, Renho agreed under political In this way, although Japanese dual nationality laws are passed the Abolition Act in 1833 the legislation reflected slavery, as has been argued by the Caribbean states that
pressure to reveal her family registry to prove she was fully not explicitly enforced and do uphold certain traditional this, allowing for slave owners to receive reparations for form part of CARICOM.
Japanese. Indeed, as much as this categorisation by Prime values, its social impact can be detrimental. The law is their ‘loss of property’.   Nothing will make up for the deep physical and
Minister Shinzo Abe of Renho as an ‘other’ may have been unfairly exclusive, configuring a social hierarchy among It has been estimated that the reparations paid to the psychological torture that was inflicted upon Black African
aimed at limiting her legitimacy as a political candidate, citizens. Additionally, the law fails to recognise the slave owners could amount to £17 billion. Some of the chattel slaves, however, reparations would go a long way to
the true effect of this unjust treatment is much wider. For incompatibility of homogenous traditions and exclusive enslaved were forced to work in order to pay off this debt resolve some of the deep issues that this enslavement caused
Prime Minister Shinzo Abe to blemish Renho’s candidacy loyalty with modern Japan. Thus, within this current whilst the British Government recuperated the rest of the and still causes. As articulated by anti-racist activist Dudley
on account of one parent’s nationality also indirectly framework, in Japan both inclusivity and social cohesion cost from British taxpayers up until 2015,  to the horror Thomas, ‘We’re asking for a legal and moral conversation
degrades any Japanese person from a diverse background, between its citizens are unjustly prevented. of many of them who were not made aware of this until about justice’.

24 25
 DICTA DICTA

Solidifying the
Conservative Court
Written by — DENIZ GUZEL Illustrated by — ELLE MACDONALD

BRETT Kavanaugh’s course to becoming the 102nd occasions, such as voting against the federal government’s
Justice of the Supreme Court was by no means a simple mandate for religious employers to cover contraception
feat. Arguably one of the dirtiest, most arduous, and for employees. This, alongside Kavanaugh’s Catholic
contentious confirmations in US history, the result was a beliefs, may suggest that in ‘religious refusal’ cases the
huge boost for Donald Trump and the Republican party court will lean towards religious freedom, continuing
who will be reassured to see a more conservative court what progressives label as ‘the right to discriminate’.
promoting their positions on social and political issues. Kennedy, despite voting for religious freedom in the
With the ability to strike down or uphold laws, the recent ‘gay cake’ case, reaffirmed protection for gay
make-up of the Supreme Court is imperative for both rights, stating that religious liberty cannot always prevail
political parties. Democrats favour ‘loose-constructionist’ in every case. With Kavanaugh’s inauguration, the
judges, who view the US constitution as an evolving court may go further in future similar cases, explicitly
document, whereas Republicans prefer ‘originalists’ stating that religious freedom is protected by the First
or ‘strict-constructionists’, who view the constitution Amendment.
formalistically and not subject to judicial activism. So far, However, Trump’s motive for nominating
Trump has replaced two judges with strong conservatives Kavanaugh may be one of personal protection.
– Neil Gorsuch and Brett Kavanaugh. However, whilst Under investigation by Robert Mueller for
Gorsuch replaced a strong conservative, Kavanaugh coordinating with Russia during the 2016 campaign,
replaced Anthony Kennedy, a softer conservative who Trump could potentially be subpoenaed to testify
was often the swing vote on contentious issues, voting regarding his role. Whether Mueller is able to do
with liberals on gay marriage and abortion. With this will most likely depend on the Supreme Court,
Kavanaugh in his place, the court has shifted to a clearer and it comes as no surprise that Kavanaugh dislikes
5-4 conservative-leaning court, concerning progressives criminal investigations into sitting presidents.
who believe he will erode established social rights. As a former Staff Secretary to George Bush,
Democrats fear that Kavanaugh’s inauguration Kavanaugh is a fervent believer in executive power,
threatens the legalisation of abortion established in Roe v once arguing that the court’s ruling to release the
Wade as Kennedy has voted for abortion rights on a number Watergate tapes may have been ‘wrongly decided’.
of occasions. While Kavanaugh, a devout Catholic, has not It is likely, therefore, that Kavanaugh will prove to
encountered abortion case law during his judicial career, be a lifeline for Trump in his determination to prevent
Trump was determined to appoint a pro-life judge and thus further investigation into his activities.
would have questioned Kavanaugh on his stance. However, Yet, Kavanaugh may not be the Democrats’ greatest
earlier this year, Kavanaugh sided with liberal judges concern. With two liberal justices, Ruth Bader-Ginsburg
in refusing to review lower court decisions that banned (85) and Stephen Breyer (80) nearing the end of their
certain states from denying Planned Parenthood Medicaid careers, a Trump re-election and retention of the Senate in
funding, possibly signalling sympathy towards abortion 2020 could give the President the opportunity to entrench
rights. Progressives have cautioned that the decision was the conservative nature of the court for decades, thanks to
based on procedural matters and that Kavanaugh may judicial life tenure. As the majority of Senate seats up for TRUMP’S MOTIVE
instead be trying to keep a low profile early on in his re-election are Republican, Trump will need to carry his
tenure following his contentious confirmation fight. party to success if he wishes to further solidify the bench. FOR NOMINATING
Although Kennedy wrote the majority opinion to
legalise same-sex marriage in Obergefell v Hodges in 2015,
In the meantime, while Kavanaugh’s legacy is
yet to be known, Republicans will be relieved that KAVANAUGH MAY BE
it is unlikely that Kavanaugh as his replacement will
threaten the Court’s recent precedent after three years.
‘Reagan’s worst mistake’ in nominating Anthony
Kennedy has been rectified, and that conservative
ONE OF PERSONAL
Instead, the court is more likely to focus on religious
liberty, which Kavanaugh has defended on numerous
interests remain dominant in the highest court
of the land.
PROTECTION.
26 27
 DICTA DICTA

Blanket Data Retention: The Meteoric Rise of Monzo

A Necessity in the Fight Against Serious Crime? Written by — WILL MORTON

Written by — EMILIA DE ROSA

DATA retention – concerning data generated and processed I agree with Attorney-General Saugmandsgaard TRUST: a key principle in daily life that since the financial required capital to launch as a fully authorised bank.
by the providers of electronic communications services in his opinion on Tele2 that additional safeguards can crash of 2007/08 has been sorely lacking in financial Whilst their functions are limited during this period, the
and public communications networks to ensure its be enough to render blanket retention compatible services. During the period of exponential expansion that FCA can monitor how the bank is operating and assess
availability in the fight against serious crime – has with EU law. The retention of data itself is not, followed the deregulation of banks and financial institutions its viability for full-blown authorisation. Due to the strict
been controversial in the EU for some time now. In I believe, the real threat to Charter rights, rather in the 1980s, profits were valued over morals and customer regulations on minimum capital requirements for banks,
the famous Digital Rights Ireland case [2014], the EU it is how that data is subsequently used by authorities. A satisfaction subordinated to bonuses. It took the cataclysm
Directive 2006/24/EC, which sought to regulate the sufficiently stringent access regime would ensure that only of the recession to shake the industry and the regulators
obligation imposed on service providers for the general the data that is ‘strictly necessary’ to identify and prosecute into taking affirmative action in the form of the Financial DUE TO THE STRICT
and indiscriminate ‘blanket’ retention of data, was serious crime would be accessed. For example, requiring Services Act, bank levies, and investigations into the cesspit REGULATIONS ON MINIMUM
annulled. The Directive purportedly interfered with prior review and authorisation by an independent body of financial impropriety that occurred when the regulators CAPITAL REQUIREMENTS FOR
Articles 7 and 8 of the Charter of Fundamental Rights before allowing access to data would indirectly force were not looking. The result has been, at least ostensibly, BANKS, THE START-UP UNIT
which protect private and family life and protection authorities to be more meticulous in identifying requisite a changing landscape that is striving to make the banking
of personal data respectively, to an extent that was not links between data and its use in the fight against serious sector more accountable both to the regulators and to
HAS ENABLED NEW ENTRANTS
‘strictly necessary’ for the purpose of the investigation, crime, thus in turn keeping the quantity of data accessed customers. TO THE MARKET THAT
detection and prosecution of serious crime. Contrary to to a minimum. Regulation alone is not the answer. Instead, the rise of PREVIOUSLY WOULD NOT HAVE
this decision and the Court’s recently reaffirmed position Moreover, taking ‘necessity’ to require that there challenger banks, working in tandem with a rejuvenated – BEEN ABLE TO COMPETE.
against blanket data retention legislation in Tele2 Sverige are no other measures that are equally as effective and and arguably world leading regulator – in the FCA, have
AB [2016], I argue that the blanket retention of data does less restrictive, it is difficult to see how a targeted data sought to turn public perceptions of banks and bankers on
not exceed what is strictly necessary in order to combat retention obligation (as permitted by the Court in Tele2) their head. Whilst before we were met with poor customer the start-up unit has enabled new entrants to the market
only serious crime, provided that it is accompanied by can be equally as effective as blanket retention. The beauty service, PPI scams and an industry lacking in diversity which that previously would not have been able to compete.
additional safeguards – in particular concerning access of blanket retention lies in its capacity to examine the led to a meagre satisfaction rate of 66% for the ‘big four’ In turn, this has increased competition and materialised in
to data. past, since data is accessible before the person has been banks, now we are witnessing increasing satisfaction with tangible benefits for customers at all banks.
identified. This can be crucial, as Anderson highlights, as our banking services. Nowhere is this more evident than So what does this mean for our ‘establishment’
schemers arguably use their communications more warily with challenger banks, such as Monzo and First Direct, who banks? Quite possibly, it means evolution or extinction.
closer to the day of the crime and thus older evidence may regularly post consumer satisfaction ratings of over 80%. Unsurprisingly, the banks are choosing the former option.
A SUFFICIENTLY STRINGENT constitute better evidence. Furthermore, it is very difficult Barclays is leading the way by providing unsecured loans
But what is causing this uptick in effort from our purse-
ACCESS REGIME WOULD – if not impossible – to predict in advance what data may be keepers? In the case of the ‘big four’ banks, improvements to innovative SMEs up to a value of £100,000, and RBS is
ENSURE THAT ONLY THE DATA linked with serious crime, so there is the risk that invaluable have been necessitated to an extent by competition. Banks buying stakes in FinTech start-ups, but more generally we
THAT IS ‘STRICTLY NECESSARY’ data relevant for the conviction or the exoneration of a such as Monzo and Starling recognise what the younger have seen an improvement in online banking services. This
TO IDENTIFY AND PROSECUTE suspected criminal is excluded from retention. The Court consumer wants: instant notifications when money has led in part to an increase in consumer satisfaction with
SERIOUS CRIME WOULD BE proposes that only data from a particular geographical area leaves your account, effective yet aesthetic apps, excellent banks over the previous three years. Yet innovation has not
be retained. However, aside from the risk that criminals exchange rates when using the card abroad, quick and been without flaw, Lloyds’ attempt to update its legacy IT
ACCESSED.
will simply relocate to an un-surveyed area, Rose holds that simple customer helplines with (functioning) social media, systems remaining a stark reminder of this.
the measure seems ‘wholly impracticable’ as the Court does and most importantly, quirky bank cards. Crucially, they The dynamism that embodies the nimble, innovative
not seem to have considered the discriminatory nature also offer diversity in female CEOs, staff from non-financial and aspirational challenger banks is underpinned by the
Following the Digital Rights Ireland ruling, Member of a measure which would target particular groups backgrounds, and a fundamental recognition that for principle of ‘fail fast learn fast’. There currently appears
States were left free to legislate on data retention using in society. a bank to function well, it needs an appreciation of to be no limit to the expansion that will follow. Tom
Article 15(1) e-Privacy Directive and Article 52(1) Charter, The Court in Tele2 took a radical position – in the customers it is serving. Clearly, this is working Blomfield, founder and CEO of Monzo, has nailed his
which permit a limitation of Charter rights provided stating that blanket retention exceeded what was well. Since its founding in 2015, Monzo now has over colours to the mast of collaboration – specifically with other
that the restriction is necessary and proportionate to its ‘strictly necessary’ – that was unjustified. Sufficiently 1 million customers; Starling Bank saw a 500% increase in ‘FinTech’ start-ups. Whilst one must be cautious of such
objective. Since the fight against serious crime contributes stringent safeguards should be enough to prevent the customers as of August 2018. expansive change, the benefits to customers are clear to see.
to public security, Article 6 of the Charter can be invoked measures from exceeding what is strictly necessary, The presence of these challenger banks, however, has If the pace of change is maintained, marshalled closely
to justify this objective. However, an interference with since the real threat to Charter rights lies in access often been contingent upon the new bank start-up unit by the FCA, then the establishment banks will have
Charter rights should still be perceived as a rarity, in order and not retention. This is even more the case since that the FCA has created. Much like an incubator for to learn to evolve continually in order to prevent
to preserve the purpose of the Charter in the protection the effectiveness of measures in the fight against serious premature babies, the unit allows fledging banks to begin a haemorrhage of young and tech-savvy customers.
of rights. This would not be possible if interferences were crime would be considerably reduced if the scope of their to operate without a full board of directors or the complete The future is bright; it is now incumbent on the
allowed for the prosecution of ordinary offences. application was constrained. infrastructure for a year. In turn, they can then raise the long-established banks to ensure they feature in it.

28 29
 DICTA DICTA

HOW IS LEGAL TECH BEING USED IN THE LEGAL PROFESSION? experience and insights we have developed through Fuse
Legal technology is slowly becoming part of a lawyer’s have enabled us to accelerate the deployment of new
working day in the same way as a colleague with legal technologies across A&O because we know which
a different specialisation may be. It can range from using technology is most appropriate for which internal or client
artificial intelligence-based technology to carry out large- need. Natural language processing can be used to quickly
scale document review exercises through intelligent, read documents and provide relevant information to firms.
online deal platforms, to streamlining major financing
transactions, to using collaboration technologies to improve
ways of working between law firms and their clients. WHERE IS THE LEGAL TECH MARKET AT IN THE PROCESS
OF DEVELOPING A REFINED, RELIABLE DOCUMENT REVIEW
SOFTWARE FOR WIDESPREAD USE AMONG LAWYERS?
IS IT TRANSFORMING THE LEGAL INDUSTRY? As I said earlier, we believe legal technology is on an
‘Transform’ is probably an over-used word. At the heart evolutionary journey, especially when it comes to AI-based

A N I N T E RV I E W of the legal industry is immeasurable knowledge and

experience, which starts when lawyers are students like
yourselves and continues throughout their careers. While
technology is undoubtedly changing – and will continue
technologies, whether rules-based or machine learning.
Reliability, accuracy and consistency are improving all the
time and our legal teams are already using machine learning
solutions to help in three particular ways: Document

W I T H SH RU T I to change – the way legal services are delivered and the

way lawyers work is more a continuous evolution than an
immediate transformation.
assessment: to help understand what documents exist
in a document set (or data room). Review assistance:
augmenting the reviewer efforts to review the document.
Automated extraction: where the document set is too large

AJITSAR IA WHAT CHALLENGES HAVE YOU FACED WHEN

INITIALLY SETTING UP FUSE?
The main challenge was deciding which companies to
for a traditional review to take place. iManage Ravn has
become one of the most successful companies from Fuse’s
first cohort.

invite into Fuse. It was really important that we selected

by abdull a kh al af from a global perspective, and we only brought in the HOW HAS THE SOFTWARE BEEN RECEIVED BY LAWYERS
best-in-class. That meant an extremely rigorous selection AT THE FIRM AND WHERE DO YOU SEE NATURAL LANGUAGE
process which required considerable effort and resources at PROCESSING IN RELATION TO ORGANISING DOCUMENTS
the outset, but which was definitely well worth the effort. HEADING NEXT?
We have a portfolio of AI-based document review
technologies, one of which is iManage RAVN. Hosting
Shruti Ajitsaria is the Head of Fuse, Allen & Overy’s tech innovation WITH A&O WINNING SIX FT INNOVATION AWARDS, them in Fuse allowed our lawyers to ask the questions
space which opened in September 2017. Fuse’s philosophy is to identify HOW DO YOU THINK THE FIRM CAN CONTINUE FINDING that they had directly of the technologists. I believe this
NEW WAYS TO OFFER CLIENTS GREATER COST-EFFICIENCY has helped to encourage trust and, therefore, usage.
legaltech, regtech and dealtech companies relevant to A&O lawyers and THROUGH TECHNOLOGICAL DEVELOPMENTS? The future of NLP, as with many legal technologies, is to
Well for a start, every day I come into the office, that’s strive for greater accuracy and consistency, with 100% as
their clients and to find ways to start working together. Prior to launching what is top of my mind, personally. As a firm, we are the end goal. Bloomsbury AI seems to have taken a more
Fuse, Shruti was a Counsel in the Derivatives and Structured Finance group, committed to becoming what is described as a ‘second- ambitious step towards innovation in this space.
generation innovator’. What that means is that innovation
specialising in credit derivatives. During the course of 2018, Shruti has is not happening in one central place, like Fuse in London.
been awarded a TechWomen 50 Award and a Fastcase 50 Award, as well We want to create a culture of innovation across the A&O THROUGH YOUR EXPERIENCES WITH THE COMPANY IN
network – maximising the knowledge and creativity of our FUSE’S SECOND COHORT, DO YOU SEE A FUTURE IN VIRTUAL
as being included in the Lawyer’s Hot 100 list and Brummell Magazine’s 5,500 staff in some 40 countries. As part of that drive, we ASSISTANTS REPLACING WORK DONE BY PARALEGALS?
30 Inspirational Women list. have recently held two highly successful Fuse roadshow Bloomsbury had some outstanding technology – as the
events: Fuse AsiaWeek in Singapore in November 2018 Facebook acquisition proved. Our focus is on using
and Fuse U.S. Week in New York in January 2019. These technology to equip and enable our lawyers, not replace
provided an ideal opportunity to show our clients and them. After all, there is a big difference between asking
lawyers what we are doing with legal technology and the Alexa to turn on the TV and asking Alexa to review millions
benefits it can bring, in a very tangible way. of documents for a regulatory compliance exercise!

WHAT BENEFITS ARE THERE TO CREATING A TECH WITH FACEBOOK ACQUIRING THE TEAM BEHIND
INCUBATOR LIKE FUSE AS OPPOSED TO CONTRACTING BLOOMSBURY AI, DO YOU SEE A THREAT IN ADVANCED
WITH EXTERNAL TECH COMPANIES (SUCH AS SLAUGHTER LEGAL TECH START-UPS BEING ACQUIRED BY LARGE
AND MAY AND LUMINANCE)? CORPORATIONS FOR TECH EXPERTISE AND NON-LEGAL USE?
By far the biggest advantage about having Fuse is that it Most legaltech start-ups are exactly that: start-ups.
brings together – on a daily basis – legaltech companies, The technologies they are developing are very much
our clients, lawyers, and technologists to share and discuss application-specific, as I mentioned above. It is probably
common problems and explore how to create technology- more likely that larger technology companies will acquire
enabled solutions to those problems. The accumulated more generic AI tech start-ups than legaltech start-ups.

30 31
 DICTA DICTA

Treaties: A Struggle
for Dominance
Written by — PUSINT LIAMTRAKOOLPANICH Illustrated by — ELLE MACDONALD

THERE is a fundamental difference between the signing having ratified it. This is also part of the reason why states
and ratification of a treaty. The latter binds the state in choose to be a signatory of a treaty despite ratifying it –it
question to the terms of the treaty whilst the former grants the state the benefit of the reputation but does not
merely expresses a sense of good will towards the treaty. legally bind states to the treaty. Nonetheless, the question
Exploiting this distinction, many states choose to become remains: are these benefits enough to restrain even the
a signatory rather than a ratified member of the treaty, most powerful states?
claiming that the treaty is in accordance with the state’s Most people would agree that they are not. Ultimately,
views but still requires slight modifications. A prominent powerful states do not have the need for these relatively
example would be the Convention on Rights of a Child ‘trivial’ advantages. This leads us back to the same
(CRC) in which the United States has been a signatory question: why do states still join treaties? According to
since 1995 but has yet to ratify, being the only state apart Francis Fukuyama, a world renown political scientist and
from South Sudan that has failed to do so. It is, however, economist, powerful states join treaties because of the
still important to recognise that most signed treaties fact that created them in the first place. The world is not
do get ratified at some point. Taking a step back, an as peaceful and orderly as it seems. The default state of
intriguing question remains: why would a state, especially international relations is one of anarchy. Of course, there
a powerful one, ratify itself to a treaty? It seems an absurd are attempts at global governance, but the main players are
proposition – to create legal restraints to bind themselves still the states themselves. By creating a treaty with specific
and others. terms and conditions advantageous to the drafters of the
The disadvantages of being ratified into a treaty are treaty, the powerful states are essentially using that treaty
obvious. It results in the loss of sovereignty and reaches to control the less powerful states while still holding the
a potentially undemocratic outcome for the state in moral high ground. Additionally, the states that refuse to

AN INTRIGUING QUESTION REMAINS: WHY WOULD A STATE,

ESPECIALLY A POWERFUL ONE, RATIFY ITSELF TO A TREATY?

question. After all, virtually all treaties are a result of ratify those treaties would immediately become targets of
collective thoughts among a number of states – a scenario criticism by the media and be branded ‘villains’.
that inevitably rarely results in unanimous agreement. A controversial example would be the Nuclear Non-
Despite this, there are also advantages. Certain treaties, proliferation Treaty (NPT). Although the goal of the treaty
once ratified, would grant the state a certain reputation. An is to limit – and righteously so – the creation and usage
example would be the Treaty on European Union and its of nuclear weaponry, the US, Russia, the UK, France and
counterparts. Members to this treaty enjoy the reputation China (known as the five nuclear weapon states) are not
of the ‘brand’ they are a part of – an increase in status, subject to the same obligations as other states. This includes
simply by being a member of the EU. This brings political the obligation to provide complete information about
and economic advantages. On an international level, civilian nuclear projects and plans to the International
member states secure more weight behind their words and Atomic Energy Agency (IAEA).
investors naturally perceive the state as worthy of a certain In the current state of anarchy, states will do all that
degree of trust. Of course, the state needs to already have they can to preserve their relative self-interests. Treaties,
a certain benchmark in their reputation. One would not many with honourable goals, are perhaps one way that this
expect Somalia to adequately uphold the CRC despite struggle on the international level is being shown.

32 33
 DICTA DICTA

Challenging the Law Taxing Times

by ch ar les m artin We’re Living In
Senior Partner at Macfarlanes
Written by — CONCOBHAR JOLLIFFE-GRIMES

WHAT do Google, Amazon and Starbucks have in common, was broadcast by media titan Channel 4, who profited off
bar being a 21st Century necessity? They like avoiding the millions tuning in as the welfare controversy pot was
their taxes. In a world of recessions, cuts and austerity, the stirred up. The tax gap is conservatively estimated at £4.1
TECHNOLOGY will replace lawyers. Some people like their Some of what lawyers do is clever and difficult. When richest in society operate in this murky area of the law so billion by HMRC, and ActionAid has reported that 98%
views binary and simple. Attractive or unattractive views it is, having the best knowledge of the law can add a huge as to pay as little into the public purse as possible. When of FTSE100 companies use havens to reduce their tax
expressed in this way can be the beguilingly compelling, amount. But often, to be relevant to our clients and to the news broke recently that football star N’Golo Kanté’s bills. It seems surprising that recent surveys have depicted
but not always right. On the other hand 'steady as she the world, most value will come from how we think and tax bill dwarfs that of Starbucks and Amazon combined, it
goes' is not likely to be a winning strategy for a lawyer of operate rather than from our knowledge of black letter became clear that something went wrong along the way. Tax
the future either. Readers who are law students are staking law. Sorry about that if you are busy toiling to acquire that avoidance is pervasively utilised by companies, celebrities TAX AVOIDANCE MAY BE
time, money and personal capital on the answer. It really very knowledge. and politicians alike, and following the Panama and COMPLIANT WITH THE LAW,
matters. Why is that? In a risky, highly regulated world in Paradise Papers exposé, this issue has become particularly
which reputations and goodwill can be lost because of a prominent.
BUT IT CERTAINLY SEEMS
Let’s go back to the basics of what lawyers do, accepting
of course that generalising in this way is rather facile. One misjudgement (never mind a mistake) on a business critical Although it is important to first distinguish that tax INCONSISTENT WITH ITS
of the things that attracts talented young people to the issue, the kind of analysis and readiness to challenge that avoidance, unlike evasion, is legal by definition, this does SPIRIT.
not exonerate the practice. In our global world, profits are
shifted into so-called ‘tax-havens’ hassle-free. Lord Tomlin
famously affirmed this ability when stating that ‘every man the British people to perceive legal tax avoidance as more
is entitled, if he can, to order his affairs so that the tax… acceptable than loopholes to increase welfare benefits.
IN A RISKY, HIGHLY REGULATED WORLD IN WHICH is less than it otherwise would be’. Tax avoidance may be Whilst Theresa May and her government recognise
compliant with the law, but it certainly seems inconsistent that tax avoidance is incredibly divisive, the current
REPUTATIONS AND GOODWILL CAN BE LOST BECAUSE OF with its spirit. political agenda is driven by a business-friendly Britain.
Income subject to corporation tax is determined in a Post-Brexit Britain will require investment, but to
A MISJUDGEMENT (NEVER MIND A MISTAKE) ON A BUSINESS similar manner to taxable income for individual taxpayers. conjure images of a Utopia neglects the need to balance
Like individuals, it is naïve to suggest that companies disciplined tax-funded capital expenditure with providing
CRITICAL ISSUE, THE KIND OF ANALYSIS AND READINESS TO will readily part with their money, but systematic and social necessities.
CHALLENGE THAT LAWYERS BRING IS IN HUGE DEMAND. calculated avoidance certainly strikes a sour taste.
This is especially true in light of welfare cuts and wage
So, what do we change? Do we issue ultimatums?
Increase tax? Unfortunately, this would tip the scales of
stagnation which fuels public anger. Taxation is integral competing interests when determining the fine balance
for a functioning society as it allows for the redistribution of attracting business and fundamental issues of fairness.
of wealth across society and funding for public services With the option for companies to press the relocate
profession is the breadth of opportunities that it offers. lawyers bring is in huge demand. It hasn’t always been like such as healthcare and education. Therefore, it is no button, tax shaming presents a viable alternative. However,
Lawyers do all kinds of different things, depending on that. Look at how few lawyers there are on UK boards. wonder that these companies are vilified by disgruntled the pressure that Starbucks and Amazon have faced are
where they work and what their role is, but nonetheless, The times are changing and lawyers are increasingly customers; the burden cannot fall solely on the ordinary exactly that: pressure. Nothing concrete. A coordinated
most lawyering calls for a common set of basic skills and listened to whenever major business or financial decisions taxpayer who abides by the rules. international attack may be fanciful but needed. Phillip
approaches. are being made. Nevertheless, change is unlikely. This is largely due to Hammond recently spoke with disdain of any such
Lawyers need to be good listeners – and better So lifting our heads and being energised by that how tax avoidance is perceived. We seem to take from the attempts; his digital tax plan was implemented in the
than they have been in the past. They need to have the realisation and developing the skills that we need to poor and give to the rich – a confused Robin Hood. The absence of the long bureaucracy of international action.
emotional intelligence to work closely and effectively rise to the challenges is the way forward, the way of demonising rhetoric of ‘scroungers’ has been the bedrock Fundamentally, if you accept that corporations should
with each other and with their clients. Anything that the future. And if young aspiring lawyers really buy-in of the last two Conservative Party campaigns which has pay their ‘fair’ share of taxes, whether for moral, economic
law schools can do to foster those skills early on is a great to all that then they have a wonderful career ahead of justified implementing controversial legislation including or legal reasons, then when one footballer pays more tax
service to their students and to the profession. Too much them. They will be supported, rather than replaced by, the Bedroom Tax and the Benefit Cap. Ironically, in than two corporate giants combined, we can agree that
of the transmit and not enough receive corresponds technology. Maybe not a binary or simple proposition depicting the supposedly immoral and scandalous something is wrong. Although unlikely, a change in social
with many people’s preconceptions and prejudices about unlike the opening words of this short piece but one that behaviour of those who sponge off our society, we bow perspectives and a long-awaited international collaboration
lawyers. I hope will inspire ambition. to corporate giants; TV documentary ‘Benefits Street’ is necessary to create a fairer and more equal society.

34 35
DICTA DICTA

Rape as a Weapon
of War
Written by — ELEANOR GUVEN Illustrated by — ELLE MACDONALD

MASS rape and widespread sexual violence is repeatedly body, especially… physical access to [it]’. This is echoed
documented in armed conflicts, yet it is far less notorious in harrowing victims’ accounts: Bosnian women repeatedly
than other war crimes. say they will feel ‘defiled’ and ‘dirty’ for the rest of their
Based on medical records and surging abortion rates, lives.
it is estimated that up to two million women were raped Wartime rape comes with many ongoing effects. In
by Red Army troops on German territory during the last addition to the lasting psychological impact, there is the
six months of World War Two. During the Bosnian War, physical impact of injury (too often resulting in death) and
approximately 50,000 women and girls were raped between the spread of STIs. For instance, 60% of combatants in
1992 and 1995. Throughout the war, ‘rape camps’ were set the DRC are HIV positive, meaning countless victims will
up in schools and hotels where victims were held captive, inevitably be infected.
continually raped and tortured. Within the ongoing DRC ISIS sex slavery is perhaps the most topical example of
conflict, where rape is described as an ‘epidemic’, a survey mass wartime rape. Since the group announced its revival
found that 79% of women in South Kivu had been gang of slavery as an institution, the rape of Yazidi women and
raped. Equally, it is important to acknowledge the scale of girls has become both systematic and a ‘trade’. Further, it
male victims. In Bosnia, approximately 3,000 men were is an established recruitment ‘tool’; ISIS leadership utilises
subject to sexual violence, while a 2010 study in eastern radical ideology to justify rape and also to praise and
DRC estimated around 760,000 men are victims. Rape of promote it as ‘spiritually beneficial’.
men and boys is also reported to be prevalent in the current Rape is a recognised war crime and crime against
Syrian crisis. humanity under the Rome Statute and the Geneva
Rape is a weapon, not just a by-product of war. To date, Convention, however prosecution is notoriously difficult.
it has been used as psychological armament to humiliate Holding to account those involved in ISIS sex slavery is
the enemy. Those sexually attacked are undoubtedly the exceptionally challenging. Convicting ISIS, in general,
primary victims; however, by publicly raping women, is problematic because many of their crimes have been
militaries can also assert a distinctive form of dominance committed in Iraq and Syria; neither state is a party to the
that shames the men in the family and tears communities Rome Statute and therefore are beyond the reach of the
apart. Rape is devastating for any person, but in conservative International Criminal Court (ICC). The Court only has
Muslim societies, there is the added suffering and fear of jurisdiction over crimes committed in the territory of, or by,
being blamed, disbelieved or excluded. Countries such as a state party. Authorisation from the UN Security council
Afghanistan and Pakistan provide more extreme examples, is the only exception. In 2015, the ICC’s Chief Prosecutor
where rape victims customarily receive death sentences. concluded that, regarding ISIS, ‘the jurisdictional basis for
In consequent trials, members of the Serbian military opening a preliminary examination into [alleged crimes] is
confessed that rape was an explicit ‘order’, alleged to improve too narrow at this stage’. Some countries like Iraq, Germany
and the UK have imprisoned ISIS members, however only
for the crime of membership to a terrorist organisation.
RAPE IS A RECOGNISED WAR CRIME The president of the Global Justice Centre has explained
AND CRIME AGAINST HUMANITY the ease of proving this with evidence, in comparison to
mass atrocities like rape.
UNDER THE ROME STATUTE The ICC is mandated to tackle the most severe
AND THE GENEVA CONVENTION, international crimes. Nonetheless, the law is reactive and
HOWEVER PROSECUTION IS prosecution requires solid evidence. So far, progress has
NOTORIOUSLY DIFFICULT. come from the cross-national launch of an investigative
team who will collect evidence for future prosecution
against ISIS. However, there is no straight-forward way of
army morale. They were told that rape of the female body challenging the current legal situation. Raising awareness
was required for the ‘conquering process’. Feminist writer, of the issue, and a more global commitment to monitoring
Andrea Dworkin, wrote that a person’s struggle for dignity and intelligence-gathering, is likely to be the most effective
‘is rooted in the struggle for actual control of one’s own approach to justice for these horrifically prevalent crimes.

36 37
 DICTA DICTA

Hong Kong’s Migrant Striking the

Domestic Workers: Right Balance:
Victims of the Two-Week Rule Regulating Fake News

Written by — ALICE HOLIAN Written by — NIAMH GREENE

MIGRANT Domestic Workers (MDW) are an inherent part average waiting time for a case to be processed from the
of many economies in Asia. This is particularly the case in initial appointment, filing and first hearing in the Labour
Hong Kong where around 370,000 MDWs are employed, Tribunal is two months. This imposes a strong financial
with the number growing each year. Under current burden on a MDW. Furthermore, any visa extensions do not THE spreading of ‘fake news’ online has become a key their credibility in order to allow people to make informed
immigration policy in Hong Kong, the Two-Week Rule accommodate any delays in police investigations requiring issue in today’s society. In the European Commission’s choices on what to believe. Denouncing the removal of
(1987) stipulates that MDWs must find new employment further expenditure on visa extensions.During this period, Communication from April 2018 outlining the new Code lawful content by signatories including Facebook, Google
and obtain an approved work visa within two weeks of a the MDW is prohibited from earning an income. However, of Practice on Disinformation, some 80% of Europeans and Twitter, ‘...solely on the basis that [it is] thought to
premature termination or expiration of their employment the MDWs still have to fund their own living expenses. This reported exposure to false or misleading information be false’, also empowers the consumer whilst protecting
contract. Failure to do so can result in expulsion from leads many to settle their claims at first instance to avoid several times a month or more, with 85% of respondents the right to ‘the freedom to impart information without
Hong Kong. This rule is a legal impediment on MDW’s this lengthy hindering process, even if it means accepting perceiving this to be a serious problem. With reliance on interference’ found under Article 10 of the European
since it hinders any form of fair treatment. less compensation than what they are legally entitled to. online news sources stronger than ever before, fake news Convention of Human Rights.
The principal reason that MDWs undertake The MDWs must weigh the benefits of receiving greater has become a real threat to democracy that damages our
employment overseas is to financially support their compensation against these burdens of prolonged stay. ability to make informed decisions.
families in their native countries. In this way, MDWs Therefore, the Two-Week Rule provides a disincentive for Fake news or ‘disinformation’ describes any type of COMPANIES ARE MERELY
can be pressured to remain in abusive employments; if the MDWs to expose and condemn exploitative practices news which is deliberately promulgated without sufficient ENCOURAGED TO WORK WITH
an MWD wishes to terminate their contract it will more and seek redress through legal channels. The rule allows (or often any) factual evidence supporting it. It is typically STAKEHOLDERS TO ACHIEVE
than likely result in their departure from the country. This human right and labour violations to remain undenounced harnessed by political parties intending to mislead the
would make it nearly impossible for MDW’s to repay since only a tiny minority of MDWs remain in Hong Kong
TRANSPARENCY AND PROTECT
reader by discrediting reports relating to the opposition’s
initial recruitment fees to employment agencies and loan to try and seek redress. claims. Following the Cambridge Analytica online data ‘FUNDAMENTAL RIGHTS’ RATHER
companies while continuing to support their families. It This archaic rule has attracted much criticism from scandal in which disinformation was published to sway THAN OBLIGED TO DO SO.
international organisations, such as Amnesty International public support for certain political campaigns, it became
and UN Committees (CEDAW and CESC), yet the Hong evident that further regulations were required regarding
Kong Government continues to ignore these pressures. what information can be presented and how. Nevertheless, the efforts of the Code to protect freedom
THIS LEADS MANY TO SETTLE Hong Kong justifies the imposition of this rule on the However, by attempting to regulate news, in turn, we of expression are still too weak. The use of ‘should’ as
THEIR CLAIMS AT FIRST INSTANCE basis that it maintains effective immigration control and risk violating the freedom of expression. If you cast your opposed to ‘will’ in the section on empowering consumers
TO AVOID THIS LENGTHY eliminates the chances of MDWs overstaying or working net too widely you will end up with censorship and a lack illustrates the wider perception that protecting the freedom
HINDERING PROCESS, EVEN IF illegally. The Hong Kong Government’s main fear is ‘job- of freedom of expression, but too narrowly and democracy of expression is a desirable goal rather than a necessity,
IT MEANS ACCEPTING LESS hopping’ involving the constant change of employer. They collapses due to the public’s inability to distinguish true which is further supported by the fact that companies are
believe that this caters for the exploitation of contractual from false. Whilst the steps taken to tackle fake news at merely encouraged to work with stakeholders to achieve
COMPENSATION THAN WHAT THEY
arrangements under a premature termination of contract. both the domestic and regional level have sought to strike transparency and protect ‘fundamental rights’ rather than
ARE LEGALLY ENTITLED TO. However, this ‘job hopping’ myth has been debunked by a delicate balance between the two ends of the spectrum, obliged to do so. The negative obligations imposed upon
a University of Hong Kong 2006 study indicating that states have had difficulty translating this into practice. states to ‘refrain from interference and censorship’ in
the ‘Two Week Rule does not in fact encourage MDWs to Either they are overly restrictive, such as in France order to promote freedom of expression also suggests that
creates a system of debt-bondage and servitude placing ‘job hop’’. These justifications are untenable in light of the where Emmanuel Macron’s new law has been critiqued the Code encourages minimum rather than maximum
the MDW at the whim of the employment agency. This injustices posed by the rule. as an unnecessary addition to pre-existing laws, or not state involvement in this area. What is more, the fact that
results in the exploitation of the MDW who have no How can the Hong Kong Government continue to restrictive enough, as in the UK where the government has non-compliance with the Code leads to asking signatories
choice but to accept excessive recruitment fees and a salary uphold a law that provides an avenue for injustice? It is time failed to act upon the Digital, Culture, Media and Sport to withdraw from it only undermines the effect of the
below minimum wage. Ironically, it is the MDWs who are that the Hong Kong Immigration Department changed Committee’s recommendations regarding the regulation Code as this sanction is not strong enough to encourage
penalised by being denied fair employment. their attitude towards foreign domestic workers. They are of fake news. adherence and ensure adequate protection of the freedom
In such abusive situations, one would expect the to be treated not as tourists but as victims of exploitative The new EU Code of Practice promulgated by the of expression.
MDW to seek compensation from her employer through employers who were forced to remain in potentially abusive EU Commission this year can be seen as an attempt to This being said, with its widespread and varying
a redress mechanism. However, the Two-Week Rule makes situations in order to pursue claims without the means of address this disparity by creating a sense of uniformity character, the issue of fake news is slippery and difficult to
it difficult and expensive for the MDW to pursue a case supporting themselves. Recent recommendations call for regarding the regulation of disinformation among catch within a legal framework. The new Code is certainly
against her employer. Firstly, the MDW would need to the waiver of the visa extensions to allow those involved states. It emphasizes the need to remain ‘mindful of a step in the right direction with regard to regulating fake
apply for a visa extension, which costs HK$190 and only in litigation to pursue justice. A more drastic measure is the fundamental right to freedom of expression’, whilst news, however, protections afforded to the freedom of
lasts for 14 days. Indeed, if a claim is lodged in the Labour required to avoid any future injustices: the abolition of the seeking to tackle the dissemination of fake news with more expression need to be strengthened throughout the Code
Tribunal a visa extension is usually granted. However, the Two-Week Rule. transparency surrounding sources of information and if it is to have a real impact on our everyday lives.

38 39
 DICTA DICTA

The Surrogate Child:

A Legal Limbo?
Written by — DISHA GOWDRA Illustrated by — BECKY MESSER

THE social attitude towards surrogacy as a means of starting manipulation and exploitation of the rights of the IPs as
a family has been in a state of quandary ever since its observed in the case of A & B and X, where the surrogate
inception. Surrounding the media outcry caused by the withdrew original consent after the child’s birth. Such
Baby Cotton case in the UK, the Thatcher government acts impact the child negatively as well since the IPs and
sanctioned the Warner Report that formed the basis of the surrogate will be involved in lengthy court proceedings,
Surrogacy Arrangements Act 1985 (SAA). Provisions of the leading to confusion surrounding who makes important
Report were highly restrictive as reflected in the current welfare decisions for the child.
statute, which does not recognize surrogacy agreements
as legally binding, but rather as a statement of intention
about how the arrangement will work.
Shockingly, the law has not developed in any AMENDMENTS SEEM TO BE
consequential way since then, grounding itself in archaic PERFUNCTORY, WITH THE
social beliefs, failing to protect the best interests and CRUX OF THE ATTITUDE
human rights of the family and children. There have been TOWARDS SURROGACY STILL
some attempts at reform through the Human Fertilization BEING RESTRICTIVE AND
& Embryology Acts 2008 (HFEA), such as providing for
DISCRIMINATORY.
civil partnerships, and more recently, a provision for the
transfer of legal parentage to the intended parent. However,
these amendments seem to be perfunctory, with the crux
of the attitude towards surrogacy still being restrictive and There is a pressing need to re-evaluate the law on
discriminatory. surrogacy, especially in terms of recognizing surrogacy
A Parental Order (PO) is a mechanism by which arrangements under the SAA. A new regime which
intended parents using a surrogate gains legal parentage. recognizes pre-birth arrangements allowing for IPs to seek
Traditionally, under section 54(1) of the HFEA, a surrogacy POs before the birth of the child could be a solution to
arrangement can only be made between the surrogate and a this dilemma. It would resolve the concerns of uncertainty
married couple, a couple in civil partnership, or one in an around the legal status of intended parents and bar the
‘enduring relationship’. surrogate from going back on the agreement. There is an
Under the current law of surrogacy, intended parents obvious need for safeguards against exploitation, as with
(IP) can apply for POs only after the birth of the child. This any other legislation, such as requiring free and informed
is a cause for concern, since the child will be born into a state consent from the surrogate and assessing the capabilities of
of legal limbo, with the surrogate retaining legal rights to the IP’s to raise a child. As suggested by Jake Richards, the
the child until PO is granted. The law’s complete disregard capability of parents can be assured by formulating criteria
for surrogacy agreements raises questions of unethical similar to Children’s Act 1989. A pre-emptive regime
conduct since almost always, a pre-birth arrangement allows IPs to prepare themselves for the future and build a
would have been devised between the surrogate and the positive relationship with the surrogate.
IPs. This entails IPs caring for the surrogate both financially Lord Mansfield aptly stated that ‘as the usages of
and emotionally. Therefore, preventing IPs of the right to society alter, the law must adapt itself to the various
care for their child immediately reflects on the unfair and situations of mankind’. This resonates profoundly with the
regressive nature of the law. It seems illogical for the law law on surrogacy, which has undergone significant change
to claim that it is ensuring a fair process when it does not in perspective since the SAA was enacted. The process has
consider the actual nature of surrogacy. begun through inclusion of surrogacy as a Law Commission
Even when IPs apply for a PO, the process is lengthy; reform issue and an amendment-in-process under HFEA
it requires approval from PO Reporters and the court, regarding single applicants. It will be interesting to see
often prolonging the process so that it lasts for almost a whether post-birth POs will be reformed, an area in urgent
year, creating an air of uncertainty. Moreover, it has led to need of rectification.

40 41
 DICTA DICTA

Jurisprudence: NewLaw vs. OldLaw

The Blind Men and A New Era of Legal Services?

The Elephant Written by — GLENN CHUA

Written by — HARSH TIWARI

THE question, ‘What will the future of legal services look they are able to devote greater time to understanding their
like?’ is becoming increasingly salient at a time when clients’ businesses and their needs, meaning tailored and
alternative legal service providers, or ‘ALSPs’, are maturing high-quality legal services at lower costs.
in the legal market. In the United Kingdom, non-traditional Of course, I have only offered a one-sided view of
structures are gaining presence and momentum as the Big NewLaw firms and some may claim that I am painting a
THE story of the blind men feeling different parts of an achieve lofty goals but fails to do so, whilst still carrying 4 accounting firms are growing their legal practice and ‘on- rather rosy, overly-optimistic picture of the future of legal
elephant’s body and reaching different conclusions on out many functions that bear no relationship with morality demand’ lawyering is becoming increasingly attractive. In services. For example, they may point out that NewLaw
what it looks like is the perfect allegory for the enterprise of at all. Like all human life, the law quite often does not this light, it seems that ASLPs are certainly set to intensify firms do not have the scale and capability to undertake
jurisprudence. From Realism to Natural Law theory, and make a lot of sense. Different theories only expose this competition in the legal market as traditional firms might complex and high-valued transactions, such as the merger
from Positivism to Critical Legal Theories, jurisprudence complicated truth about the law, showing how it is both see some of their work, especially that of lower value, of 2 FTSE 100 companies. This may indeed be the case
is an exercise of human intellect working towards a independent from morality and a product of it. reassigned to ALSPs. but surely only for the near future, for around 5 years or
common goal of unraveling the different mysteries of Justice Holmes was well aware of the fact that the ASLPs are more commonly known as ‘NewLaw’ firms, so. Arguably, it is an eventuality that NewLaw firms will
the law. To this end, it provokes much controversy and law is both an aspirational endeavour and a fallible one. a term which was first coined by Eric Chin in 2013 to gradually develop their competences to this level and it is
disagreement, but ultimately reveals different parts of the He once stated that the law was a grand but mysterious encompass their various forms. As explained by Chalmers, just a question of time.
very same concept. princess; not everyone can understand her but ‘to the NewLaw firms are ‘emerging models’, operating with ‘new
discerning eye’ she discloses ‘every painful step and every staffing, pricing and legal service delivery’. The upshot of
world-shaking contest by which mankind has worked such a model is that NewLaw firms operate more efficiently,
as any cost savings can be passed down to corporate clients USING TECHNOLOGY
and fought its way from savage isolation to organic social
THE LAW IS A PRODUCT life’. Yet, this eloquent language still hides the ugly reality – but how does this work? Let’s take the example of ‘virtual TO THEIR ADVANTAGE HAS
OF THE HUMAN MIND that the law can be a tool of pure coercion. Instead of law firms’. AND WILL CONTINUE TO
AND IS PERENNIALLY having a moral premise that is woefully implemented, Broadly, virtual law firms are envisaged to provide FACILITATE UNPRECEDENTED
the law can have grossly immoral purposes in the first ‘flexible lawyering service’ as ‘virtual lawyers’ do not CHANGES IN THE
SUBJECT TO CHANGE.
place. A whole repository of laws from the Nazi era are commonly work from an office, at least not on a day-to-day COMMERCIAL WORLD.
a testimony to the fact that the law is not just a story of basis. Rather, they can work flexibly from remote locations
how we went from savagery to civilisation but also the and provide legal services on an on-demand basis which
A poignant illustration of this truth is surprisingly other way around. The Critical Legal Theorists do a very gives them relatively greater autonomy when managing
found in a re-examination of the Hart v. Fuller debate. good job of showing us how the law can rationalise and their workload, in terms of both the type of work and its Using technology to their advantage has and will
Fuller argues that the law, to command our loyalty, has to legitimise such savagery. Scholars like Marx, Foucault or quantity. As summarized by the CEO of CuroLegal, Chad continue to facilitate unprecedented changes in the
represent a degree of human achievement. It has to be more MacKinnon have revealed that what may seem noble or E. Burton, a virtual lawyer ‘leverages technology to run a commercial world and it is what will set NewLaw firms
than a simple fiat of power or some pattern of behaviour correct in traditional legal theory is actually a reflection modern law firm outside the traditional brick-and-mortar apart. Just consider how Amazon and ASOS disrupt
of state officials. On the other hand, Hart argues that of ideals that prop-up oppressive social systems and how setting’. businesses in retail, not only do they rival them but they
just because we think a law is immoral, it does not follow it has been used as a tool to legally enforce ideologies like In comparison to traditional law firms, virtual force those traditional ‘brick and mortar’ businesses to
that we consider it to not be law, for the law is something capitalism, or to promote racism, misogyny, homophobia law firms have two key advantages. Firstly, they enjoy adapt. In this context, technology has facilitated access to
ultimately distinguished from everything else by its form. and colonialism. significant cost-saving by making do with minimal to no cheaper goods, and at much greater convenience. In the
Fuller is right to assert that law and morality are not entirely However, this does not restrain humans from believing office spaces, but more importantly, this then translates to legal industry, technology could facilitate disruptions –
separate entities, that we do aspire to reach morality, justice, the law is inherently ‘good’ in some way. It simply means cost savings for clients which is what gives virtual law firms albeit in a different manner. For example, collaboration
order etc. through the law, but surely, Hart is not wrong that a definition of good is almost always susceptible to a competitive advantage over traditional firms. Secondly, could be made easier through secure and private video-
either. He is simply saying that the law does have a life of being wrong and greatly unjust. Ultimately, it would and crucially, they deliver higher quality legal services with conferencing, and algorithms could be created where
its own independent from morality; that it is not just a seem that legal philosophers have simply been touching lesser manpower. In my opinion, this can be attributed lawyers of the right-fit can be ‘crowd-sourced’, especially
reflection of people’s moral standards at any given time. the trunk or leg or tail of the elephant and describing an to two reasons. Firstly, if virtual lawyers enjoy greater when dealing with more complex transactions.
Natural law and Legal Positivism, as epitomised by elephant as a snake, a tree or a rope. They sometimes find flexibility and autonomy in managing their workload, Put yourself in the shoes of the director of a corporation
Fuller and Hart respectively, definitely contradict each that the law is a social fact, a command or a norm, and at then arguably they are more engaged with the work as or a business owner and ask yourself from whom you would
other, but that is only because of the contradictory nature other times they find that it is the implementer of moral they choose to undertake it. Secondly, as briefly alluded be more inclined to procure legal services: traditional firms
of the law itself. The law is a product of the human mind good sense or a horrifically unjust social order. To quote to earlier, virtual lawyers work more efficiently by using or NewLaw firms? In my view, if you have a tighter budget
and is perennially subject to change, so by its very nature the Rig Veda, in jurisprudence ‘there is but one truth’ and technology to their advantage, most commonly for billing, to work around and you want a client-focused lawyer, it
it is ‘imperfect’. It is bound to be an entity that seeks to yet, ‘the sages and scholars [of jurisprudence] know it as document review and case management. The upshot is that would have to be the latter.

42 43
 DICTA DICTA

SINCE BEING APPOINTED A SUPREME COURT JUDGE, channel through which we are presented with the relevant
WHAT CHALLENGES HAVE YOU FACED? information. The second thing, when thinking about
Well, I’m now effectively just judging whereas previously developing the common law, is to bear in mind that it’s a
I had a large part to play in legal reform and the law applied by countries around the world and we don’t all
administration of civil justice. I’m a serious full-time do it in exactly the same way. It’s rather like a big river delta.
judge and the big responsibility is that there is nobody Sometimes our streams are close together and sometimes
higher up in the UK to put things right if I get it wrong. they diverge.
But the compensating factor is that I sit in a group of 5
or 7 so that there’s a minimal chance that if I decide to
go off in the wrong track I won’t be hauled up and put in DO YOU THINK THE RISE OF TECHNOLOGY POSES
the right direction by my colleagues. The challenge is, I A CHALLENGE FOR THE FUTURE OF LAW AND FOR

A N I N T E RV I E W
think, to deal with errors of the law which will probably THE NEXT GENERATION OF LAWYERS?
only come to the Supreme Court very occasionally so that I certainly don’t think it proposes a real challenge for the
what you do has a very long-term consequence for all the future of law in the sense that technology is an area which
other courts and people who have to obey and operate in must be governed by the rule of law like every other area. If

W ITH LOR D
accordance with the law. it isn’t, it will be a jungle. It imposes a challenge I think for
judges because they tend to be educated in the humanities,
being history, law, English, classics and so forth rather
than the sciences, so that most of them find it difficult to
THE CHALLENGE IS,
BR IGGS, SUPR EME
understand quite how technology works. Even if judges
should not be thinking like computers, they need to
I THINK, TO DEAL WITH know how computers think so as to resolve cases in which
computers play an important part in the relevant events.
ERRORS OF THE LAW
COURT JUDGE
There undoubtedly is a challenge for us to keep abreast of
WHICH WILL PROBABLY how technology works and to understand it.
I think in my own background particularly of the
ONLY COME TO THE challenge which descended on me when I became the
London judge in charge of the Lehman Litigation after the
by a bdull a kh a l a f & munk ir an deo SUPREME COURT VERY 2008 crash, having to understand all about derivatives –
about which I admit I knew virtually nothing about before
OCCASIONALLY SO THAT the first big case. You’ve got to know how the subject matter
on which you’re passing judgment works and regulates
WHAT YOU DO HAS itself and you have to understand a bit of it. I had to do
a case about representations regarding the throughput
A VERY LONG-TERM of nuclear waste at the Thorp plant in Cumbria. This
involved me learning quite a lot about physics and quite
A leading expert in commercial and chancery law, CONSEQUENCE FOR ALL a lot of plumbing and stochastic modelling all in one
case to be able to give a judgment that was going to be
Lord Briggs was the judge in charge of the Lehman insolvency THE OTHER COURTS. of any credibility at all. The same is true of cases about
litigation from 2009 to 2013. He led the Civil Courts Structure Review information technology.

and is an avid supporter of digitalisation through cyber courts.

In January 2016, he was appointed Deputy Head of Civil Justice WHAT FACTORS DO YOU CONSIDER WHEN CHALLENGING THE FINALLY, WHAT ADVICE WOULD YOU GIVE TO
LAW THROUGH SUPREME COURT JUDGMENTS IN LIGHT OF AN ASPIRING LAWYER IN OUR GENERATION?
and subsequently became a Justice of the Supreme Court in October 2017. CHANGING ECONOMIC AND SOCIAL CONDITIONS? Firstly, do think about litigation as a serious aspect of
Of course, we don’t challenge statutory law save in the very legal practice – I know how much fun it is having spent
limited sense of making declarations of incompatibility on my whole life doing it. I’m essentially a court animal and
human rights grounds. Otherwise, it’s our job to interpret it doesn’t matter whether you’re there as a solicitor or a
it. With common law, we do, however, undoubtedly have barrister, the judge or even the usher, the court is a great
a job which involves keeping it up to date in changing and a wonderful experience. I think vindicating and
economic and social conditions. I think the challenge for defending people’s rights in court is a really important
courts is that they are limited to what the two parties (if public duty which lawyers can perform like almost no one
it’s a two-party case) and their counsel choose to tell them. else. I would also advise aspiring lawyers to bear in mind
We can’t conduct social attitude surveys or any other kinds that provision of part of their time to pro bono to assist
of surveys of our own into economic and social conditions those who can’t afford legal services should be seen as an
and we are, therefore, not as well placed as Parliament to indispensable part of every young – and not so young –
respond to them. lawyer’s practice. There are many ways in which it can help
So the first consideration is to be cautious and to be and it is hugely rewarding when you do it, not least because
sure that we have an understanding about what those of all the love that comes your way from the judges who
social and economic conditions are because of the narrow have you to intermediate between them and the litigants.

44 45
 DICTA DICTA

The Rising Judiciary ‘A Snoopers Charter’

Written by — MEGAN CARVER Is Increased Governmental Surveillance Wise to Combat Extremism?

Written by — ZACHARY BOURNE

ONCE upon a time there was a judicial branch that was The HRA conferred strong powers to the courts. ‘THOSE who would give up essential Liberty, to purchase (done properly) would be an invaluable asset to prevent
subordinate to Parliament. In all matters, it would act As well as declarations of incompatibility under s.4 a little temporary Safety, deserve neither Liberty nor such attacks from occurring. In 2017 alone, MI5
with subservience to Parliamentary will, painting a smile enabling significant political sway, s.3 enables the courts Safety’. – Benjamin Franklin. reported that their powers of surveillance attributed
across Dicey’s face. Since then, between the enactment of to effectively alter legislation. Mendoza depicted the Governmental surveillance is a highly controversial by legislation helped prevent over 9 terror attacks
the Human Rights Act (HRA) 1998, the Constitutional judiciary acting autonomously in protecting fundamental topic. In April 2018, The High Court in R. (on the from occurring. But whilst the issue of surveillance is
Reform Act 2005 – enshrining judicial independence rights; s.3 was utilised to extend the meaning of ‘spouse’ application of Liberty) v Secretary of State for the predicated on the privacy versus safety arguments, it is
whilst severing political ties – and the judiciary to also give protection to those in a stable, enduring Home Department issued a section 4 Declaration of far from a bifactorial issue.
establishing quasi-constitutional powers, the traditional relationship. Lord Bingham commented that ‘the Incompatibility against the newly created Investigatory Current governmental and counter-terrorism
Diceyan account of Parliament’s ‘pure and absolute’ interpretive obligation under s.3 is very strong […] and Powers Act 2016 on the grounds that the increased level investigations are severely hindered as a result of budget
power can certainly be perceived as diluted. may require the court to depart from the legislative of governmental surveillance permitted by Part 4 of cuts which have occurred in response to the financial
Parliament is elected directly by the people to represent intention of Parliament’. Strike down powers seem the Act was incompatible with EU Law. This, as well as crisis. The Westminster and Manchester attackers were
their will. Therefore, Parliamentary sovereignty seems unnecessary given the HRA; Lord Phillips described another successful judicial challenge in January of the all known to the security services prior to the events,
appealing – if legislators are deemed inadequate, they are the ‘constitutional crisis’ that would be considered Data Retention and Investigatory Powers Act 2014, can however MI5 failed to prevent the attacks. In the
voted out and replaced. However, do the people have any before such action would be necessary. The legislation be viewed as a success for those who value the upholding Cameron/May Conservative Governments between
real idea of what happens in Parliament? In Anisminic, it would first be given a different, unintended meaning, of the general right to privacy. However, the issue on 2015 – 2018 there have been 7,000 fewer Police Officers
was evident that Parliament was attempting to prohibit one that Parliament could acquiesce to as they would be governmental surveillance and its implications is a on the streets of the UK due to budget cuts in the period
judicial review, to exclude any means of redress for those saved from political disgrace. Indeed, the judiciary can multi-faceted problem, and one which may not give rise of austerity following the financial crisis. The security
feeling that there had been an unlawful exercise of power. ‘finesse the intention of Parliament from time to time’. It to a distinctly clear answer. services can therefore be deemed to have the requisite
It was the judiciary who acted as the guardians of our would not be surprising to see their powers grow to make The primary reason for the incompatibility of current powers on paper, however, cannot exercise them fully in
constitution, who continue to protect our fundamental ‘declarations of unconstitutionality’, expanding their UK counter-terror legislation is the right to privacy reality.
rights. Whilst the UK Supreme Court shares the same influence in the political arena – certainly if it remained (Article 8 ECHR). The apprehension amongst the public It has been further noted by the (then) Home
name as its US equivalent, it is commonly seen as weak non-coercive like s.4. is that an increase in surveillance by UK authorities Secretary Amber Rudd, that Daesh militants have turned
for its lack of ‘strike down’ powers, but considering its In Anisminic, the judiciary ‘threw down the gauntlet infringes such privacy, with some fearing that the future to social media platforms to spread their ideology, but it
evolution, the UK judiciary can now be seen to act with and it was not taken up’ illustrating that the effort to may give rise to a quasi-East German/1984 regime under was estimated that only 83% were reasonably removed.
greater autonomy than ever before. withdraw power from the judicial arena was met with a draconian scrutinising Government. While a dystopian Security services are fighting with one hand tied behind
strong opposition. That was in 1969. Given the judiciary Orwellian state is far from realistic, the general paranoia their back as a result of the years of austerity; this has
has since become significantly more empowered, deriving from such legislation is not unfounded. Under
the assertion by judges in Jackson that the courts, in the plethora of legislation, Government agencies would
SITUATIONS MAY ARISE certain circumstances, have inherent powers to disapply have the power to access data on members of the public
WHERE THE COURTS HAVE TO legislation does not seem so farfetched. Situations may they deem to be a threat. Surveillance has been deemed WHILE A DYSTOPIAN ORWELLIAN
CONSIDER WHETHER THERE ARE arise where the courts have to consider whether there so excessive that in September 2018, the ECHR ruled STATE IS FAR FROM REALISTIC,
CONSTITUTIONAL FUNDAMENTALS are constitutional fundamentals which even ‘a sovereign that RIPA violated human rights and had ‘no real THE GENERAL PARANOIA
WHICH EVEN ‘A SOVEREIGN Parliament cannot abolish’. safeguards’ with ‘insufficient oversight’. One could be DERIVING FROM SUCH
Of course, the rising judiciary faces the counter forgiven for worrying that their actions online will be LEGISLATION IS NOT UNFOUNDED.
PARLIAMENT CANNOT ABOLISH’.
majoritarian difficulty, but as John Laws stated, ‘the under constant scrutiny by Government agencies.
only real complaint against this would be in the mouth However, in reality, the surveillance state professed
of someone who asserts that governmental authority, by sceptics cannot be viewed to be as extensive as once
The ruling in Thoburn was a watershed moment. because it is there by popular vote, should possess the thought. GCHQ would only be accessing information severely depleted their ability to uphold and maintain
To academics, it illustrated a fundamental change in power to override fundamental rights without compelling if the person was of interest to the security services, and security.
the constitution. First, Factortame established that good reason’. Theoretically, Parliament’s self-imposed this can usually only be done after a warrant is given. Overall, tougher anti-terror legislation would not
constitutional statutes required expressed words of repeal; constraints do not bind future Parliaments, however, The legislation is not written with the intention of reasonably infringe on the rights of law-abiding citizens.
Thoburn then declared the European Communities Act the courts ensure that in repealing any of it, Parliament targeting the average law-abiding citizen. To quote the However, despite increased Governmental surveillance
1972 to be a ‘constitutional statute’, making the Act a law must squarely confront its actions and accept the political fictional Home Secretary Julia Montague from the BBC being beneficial in order to tackle rising extremism,
of superior status whereby the doctrine of implied repeal ramifications. Consequently, reversal of empowering series Bodyguard; ‘We’re not after you if you type into it only goes half the way to solving the problem. Lack
is not applicable. This revolutionary declaration effectively provisions and the judiciary’s adopted role as guardian your search engine B-O-O-B-S, but we ought to know if of financial resources plays a key role in the failings in
demonstrated ‘quasi-constitutional’ review powers, of our uncodified constitution will be unlikely. Should you type in B-O-M-B’. the recent era. If austerity is truly over as Theresa May
permitting our judiciary to take on a role similar to courts an attempt be made to withdraw power from their arena, The threat level in this country is at an unprecedented recently claimed, it is now time for there to be sufficient
with codified constitutions such as the Supreme Court of it is expected to be met with the same – if not stronger – level as a result of the terror attacks which have occurred funding rather than further legislative action in order to
Canada. opposition as before. in the past few years. Broader powers of surveillance protect this country.

46 47
 DICTA DICTA

The NPCSC’s Interpretation

of Hong Kong’s Laws
Written by — NATALIE WONG Illustrated by — GEORGE A. RILEY

HONG KONG and China operate under a ‘One Country, Two Sixtus Leung being elected as localist lawmakers in 2016.
Systems’ framework. The supreme interpretative power The controversy reached its height at the oath-taking
vested in Beijing’s legislative body – the National People’s ceremony for lawmakers where Yau and Leung ‘pledged
Congress’ Standing Committee (NPCSC) – against loyalty to the Hong Kong Nation’ while using racial slurs
Hong Kong’s mini-constitution, is modelled after that of that insulted the Chinese.
the European Court of Justice (ECJ) in relation to the A judicial review was brought before the High Court
national courts of EU member states. of Hong Kong to determine the oath-takings’ validity
Article 167 of the Treaty on the Functioning of the under the HKBL, inevitably intensifying the clash
European Union (TFEU) provides two situations in between those pro-independence and those against. In the
which the ECJ could exercise supreme interpretative midst of this civil clash, an unexpected common threat
powers. Firstly, the provision confers discretion on manifested; whilst awaiting the Court of Final Appeal’s
national courts to seek the ECJ’s interpretation of EU laws (CFA) judgment, the NPCSC interpreted provisions
in question. Secondly, an obligation to refer to the ECJ under the HKBL at its own discretion.
is imposed where there can be no further appeals. This Legal commentators saw the interpretation as
model is observed in the Hong Kong Basic Law (HK’s tyrannical and it was easy to see why. The NPCSC was
mini-constitution) which confers a high level of autonomy not entitled to interpret the HKBL without the CFA’s
to Hong Kong in interpreting its own constitution. request; China’s sovereignty was not undermined by
The first provision of TFEU Article 167 is almost declarations of Yau and Leung’s pro-independence views
directly transposed in Article 156 of the HKBL conferring (regardless of their deplorable phrasing). Moreover,
liberty to the Hong Kong courts to seek the NPCSC’s the CFA was capable of adjudicating the situation. The
interpretation. The second provision differs slightly as NPCSC, in its interpretation that oaths must be taken

IN THEORY THE TWO SYSTEMS MAY EXIST HARMONIOUSLY IF THE FRAMEWORK IS RESPECTED.

three criteria must be met before an obligation to refer to ‘accurately, completely, and solemnly’ and that there ‘can
the NPCSC is imposed. Mr. Robert Allock summarised be no arrangement for the oath to be retaken’ essentially
this: firstly, the provision interpreted must concern amended the law, contrary to Article 158.
China’s sovereignty; secondly, the interpretation would The interpretation is widely perceived as Beijing’s
be one that would affect the relevant judgment; finally, attempt to wield control over Hong Kong’s political
the final judgment must not be appealable. Academics direction. Whilst, to the relief of many, Yau and Leung’s
observed that interpretations should only clarify the law seats were disqualified, the court ruled without reference to
rather than amend it. The transposition of a Western the interpretation. However, does the court’s disregard for
judicial system, with the added restrictions, promised the interpretation mean Hong Kong is safe from Beijing’s
Hong Kong judicial independence – perhaps a response judicial tyranny? This saga of events proves Beijing’s
to the fundamental differences between China and Hong determination to forcefully integrate Hong Kong without
Kong’s judiciaries. This relationship is especially difficult, respect for the ‘One Country, Two Systems’ framework.
as Hong Kong cannot ‘opt out’ of it as EU member states Beijing utilised the jurisprudence of the ECJ to promise
are able to. a high level of judicial autonomy, only to single-handedly
Thus, in theory the two systems may exist destroy public confidence in the rule of law in attempt to
harmoniously if the framework is respected. Yet, voices rule by law. UK citizens critical of the ECJ’s jurisdiction
still called for Hong Kong’s independence from China. may vote to withdraw from this relationship, but to the
Whilst pro-independence activists were and still remain citizens of Hong Kong, this option is non-existent.
a political minority, the 2014 Umbrella Movement The acts of Beijing depicted arbitrary interference
pushing for universal suffrage in the Chief Executive in a civil controversy – how can one challenge the law
election appealed greatly to the voting youth. A rise in if a higher power can consistently and arbitrarily exercise
popularity for independence led to Yau Wai Ching and their superiority?

48 49
 DICTA DICTA

‘Why Not Me?’ Big Brother Britain:

Obstacles to Girls’ Education Around the Globe The Secret ‘Forces’ at Play

Written by — IRINNA VAVALETSKOU-PALAIOLOGOU Written by —TEDDY HUNT

THE Trump administration and Kavanaugh’s less source of income. Eritrea shockingly mandates child
confirmation seem to have instigated a political labour, and Somalia’s efforts to fight child labour are
awakening for many women in the U.S. In the 2018 deficient. Although legal efforts are made nationally and
mid-term elections, a strong correlation was observed internationally in Afghanistan, enforcement is nearly
between districts with a significant percentage of college non-existent. Regrettably, in these areas, the law has IN our ‘Big Brother’ world, little would take us by within this definition? While the Metropolitan Police
educated women and Democratic Party prevalence. not been successfully challenged, however, the norms surprise… or so you would think. The Bond film ‘The Spy argue such relationships are ‘never authorised’, some covert
This positive change reflects the importance of women’s underlying it have, through organisations like Global Who Loved Me’ was imagination at its best. But what if officers, such as Mark Kennedy, insist their handlers knew
education. However, this is not a view to be postulated March and Love 146. we discovered a parallel in real life? We have always known the extent of these relationships. Was Mark Kennedy a
in developing nations. Individuals and organisations, in Astonishingly, menstruation is a significant barrier in covert operations existed, yet somehow, they seem so rogue officer, or were his actions representative of a bigger
countries where female education is not prioritised, are countries such as India, seen as impure and disgraceful. disconnected from our mundane existence. Were we wrong problem? Evidence suggests that such tactics are routine,
directly and indirectly challenging laws failing to protect Girls are often prevented from attending school while to be so complacent? but if Kennedy was a known rogue, why was he allowed to
girls from obstacles to education like terrorist groups, on their periods. Dropping out during menstruation Imagine waking to discover the last five years were remain in the field for so long? If not, are we to take it his
child marriages, child labour and menstruation stigma. is a reality due to lack of sanitary products and poorly built on a lie: everything you thought you knew was fiction handlers acquiesced to his conduct?
Malala Yousafzai is a prominent figure in the fight maintained facilities. In a reprehensible and cruel and those closest to you were not who they said they were. Police chiefs argue there are good operational reasons
for girls’ education in developing countries. As an manner, menstruating girls are forced to stay in ‘gaokors’, Suddenly, the ‘Bond’ ethic loses its appeal. This deception why they must retain room for manoeuvre. In the context
outspoken teen on women’s education in Pakistan, she or ‘menstruation huts’, where some contract infections was a reality for eleven British women, tricked into a of national security, this seems legitimate. We look to the
was tragically shot in the face by the Taliban. Currently, or die due to the unsanitary, dangerous conditions. The relationship with an undercover police officer sent to spy police for safekeeping: they cannot do this with their hands
she continues her admirable work in eliminating obstacles lack of legislation and common sense to protect women on those closest to them. Deceived into sharing the most tied. This is not to say RIPA should remain unchanged: as
encountered by girls worldwide. Malala’s home country from these inhumane conditions has been challenged private parts of their lives, these women were used by covert it stands the legislation is ambiguous and open to abuse.
Pakistan unsatisfactorily only requires a minimum of by the Indian Human Rights Commission which called officers to confer legitimacy onto their fictitious characters. But perhaps a sweeping legislative change is not what this

UNFORTUNATELY, THESE EFFORTS ADDRESS A FRACTION OF THE ISSUES; THIS IS ABOUT MUCH MORE THAN JUST A LYING BOYFRIEND; IT’S ABOUT A FICTIONAL
THE REALITY OF MALALA’S WORK IS OBSTACLE-RIDDEN. CHARACTER, CREATED BY THE STATE AND FUNDED BY TAXPAYER MONEY.

primary education as opposed to secondary education, the government to action. Unfortunately, although a This is about much more than just a lying boyfriend; it’s situation needs; the problem appears higher up the chain
and the enforcement of such legislation is rarely done team of specialists was assembled to educate families about a fictional character, created by the state and funded of command. If Patricia Gallan, the former Assistant
successfully. Thankfully, MALALA FUND is working on the issue, it is still a prominent practice. Admirably, by taxpayer money. Covert officers routinely exploited the Commissioner of Specialist Crime, is correct, and the rules
towards eliminating such barriers by building schools, these norms are more effectively being challenged by vulnerabilities of these women, violating their personal, governing covert policing are robust, then the issue lies
thus providing a space where girls can continue into organisations like the Myna Mahila Foundation, by psychological and bodily integrity. Of the eleven exposed in their implementation. If true, then those handling the
secondary education. Unfortunately, this is treating the distributing sanitary products to young girls in India. officers, nine engaged in sexual relationships and one officers are failing in their duty.
symptoms, not the source. Extremist groups continue Eradicating the stigma on a process so natural is the first fathered a child. Eventually, the officers would vanish. As with all rights-related questions, the answer to the
to target schools that educate girls. Yet, Malala’s strong step in empowering women, helping them claim their These practices arguably push ethical boundaries – such problem lies in one’s view of fundamental rights. Arguably,
voice on issues regarding girls’ education has inspired a right to education and begin to take on the world. revelations led to the announcement of a Public Inquiry such deceit and invasion of privacy is abusive. Rights
generation of change. Muzoon Almellehan, refugee and Time and again, legal jurisdictions worldwide into undercover police operations since 1968 – the first should never be derogated, rather, always protected. Laws
UNICEF Ambassador, is an inspiring proponent of girls’ have failed girls in accessing education. The reasons time UK policing has been exposed to such an in-depth governing covert policing have been ambiguous since the
education by publicly speaking against child marriages vary but revolve around existing cultural norms, like examination. 60s, it is time we started asking serious questions of those
which force girls to leave school and start families. child marriages and menstruation stigma or adverse So, what protections should we expect from this gross entrusted to protect us. However, we should not lose sight
Law makers have, time and again, proven unable to circumstances that are not being addressed such as invasion of private life? When does undercover become of the purpose of covert operations which are vital in
address such issues. Thus, individuals like Muzoon and extremist groups and child labour. Disappointedly but underhand and how far should officers be allowed to go keeping Britain safe. Such operations are instrumental in
Malala demonstrate that not only are they indirectly not surprisingly, the law and cultural norms, particularly in gathering intelligence? Unsurprisingly, the answer combatting organised groups and are arguably justifiable
but effectively challenging sociolegal norms, but their in developing countries, have failed their girls on these is unclear. The framework governing covert policing in the name of the greater good.
influence has – on occasion – proven more powerful issues. Thankfully, the Malalas and Muzoons of the world is ambiguous at best. The Regulation of Investigatory Ultimately, we must be convinced that effective
than that of the law. are making a visible difference by fighting this war on Powers Act 2000 (RIPA) sets out the circumstances in operational checks and balances exist. Recent revelations
Unfortunately, these efforts address a fraction of the girls’ education head-on. Malala’s influence has proven which covert sources can be deployed. However, RIPA indicate that covert policing has lost its way; there is clear
issues; the reality of Malala’s work is obstacle-ridden. undeniable, and more fighters emerge every day. The says a lot without revealing much – there is confusion over room for improvement, be this legislative, or operational
A further issue is that of schooling costs regarding future for girls’ education slowly but steadily becomes the rules governing police conduct. Section 26(8) allows to control both supervision and handling. We must ensure
supplies and transportation. However, in certain areas, brighter, and that is when true positive political change covert officers to establish and maintain ‘a personal or operations are necessary, proportionate, legitimate and
the most significant cost for families to endure is one can be made. other relationship’ – were sexual relationships envisaged accountable.

50 51
 DICTA DICTA

Fathers Who Environmental Policy,

Give Birth A Deal Breaker?
Written by — KARLA VIINIKAINEN Written by — EMMA BOWMAN

2018 was a tumultuous year for climate action: carbon demonstrating the dire need to act on climate change, and
emissions reached record growth of 2.7%, predominately scientists placed emphasis on the need for European leaders
due to increasing consumption in emerging economies; to set an example in relation to climate action. Mirroring
DESPITE the rise of LGBTQ+ movements and increased sex reassignment. Considering that many countries, like world leaders came together in Katowice to agree on other world leaders, the UK government seems comfortable
awareness of transgender rights around the world, several the UK, do not require irreversible operations to be done a plan to implement the Paris Agreement, which did as making promises of an unprecedented commitment to
misconceptions still persist. Transgender individuals face in order to change one’s sex formally, trans individuals may much to emphasise conflict as to agree a harmonious tackle environmental challenges. Yet, without the teeth
many complex societal and legal challenges in order to have be able to maintain their ability to have children naturally global approach; and Theresa May made a commitment necessary to provide fundamental enforceability there is
their rights and freedoms recognised due to some deeply- – and why shouldn’t they? In fact, we have witnessed to secure ‘world-leading’ environmental legislation in the doubt that these promises will be substantiated.
rooted misunderstandings about sex and gender. Various situations in which trans individuals who were assigned UK. Yet this legislation, expected in 2019, is already facing But there are reasons to be optimistic. The promise
misconceptions exist in our regulative frameworks which female at birth have formally and legally become men, and criticism. of ‘world-leading’ environmental policy post-Brexit may
normalise the concept of binary gender; it is therefore not yet, given birth to a child. In the UK, the combined effect of growing be facing scepticism, but it is important to recognise that
surprising that ‘fathers who give birth’ is an unnatural- For the purposes of such individuals, being formally environmental pressure and Brexit has created a unique this result is not the worst outcome. Within plans for a
sounding concept to many. recognised in their preferred parental gender in relation to opportunity for environmental change. Britain may have ‘Green Brexit’, the principle of non-regression, which
Under the current law in the UK, no child can be their own biological children becomes an important issue. more freedom after the split with the EU, but it is not would commit both the UK and the EU to not reducing
legally motherless and no father can give birth. There exists As illustrated, under our current legislation they would be certain in which direction this autonomy will take us. environmental standards post-Brexit, could potentially
a longstanding common law presumption that the person considered ‘mothers’, rather than ‘fathers’ in the official Whilst a Brexit deal could enable EU environmental policy secure environmental protection in the UK. This apparent
giving birth to a child is legally the mother of the child. This birth certificate. Such an approach highlights the existing to be retained in the UK during a transition period, Brexit harmony over environmental regulation exists in contrast
assumption is also codified in the Human Fertilisation and binary approach to gender in our legislation. Instead, our will inevitably lead to the loss of enforcement mechanisms to the COP24 talks in Poland, which managed to bring to
Embryology Act 2008 (HFEA). Historically, motherhood regulative environment should accommodate for a more within the European Courts. Over 80% of environmental light the stark conflicts that exist amongst world leaders as
has been considered a legally enforced biological fact, flexible definition of gender – one which can be understood regulation in the UK is EU derived, and as such we much as it created any guidelines for the implementation
have relied on EU enforcement mechanisms to hold our of the Paris Agreement.
government to account. As Brexit sparks inevitable economic fragility in the UK,
As a solution to this gap, December’s partial Draft the government’s strategy towards environmental policy
OUR REGULATIVE ENVIRONMENT SHOULD ACCOMMODATE FOR A MORE FLEXIBLE
Environmental (Principles and Governance) Bill outlined could play a key role in securing future financial stability.
DEFINITION OF GENDER – ONE WHICH CAN BE UNDERSTOOD SEPARATELY FROM the introduction of a new watchdog, the Office of May’s government seems to have rejected the adverse
ONE’S REPRODUCTIVE ABILITIES. Environmental Policy (OEP), to fulfil this need. Yet, this courses of action endorsed by critics such as Trump and
has sparked much criticism amongst activists – unlike EU recognised that early intervention in climate issues could
mechanisms, the proposed OEP will not be afforded powers strengthen the UK economy in the long-term. Allowing
which ensured that no ‘illegitimate’ child was left without separately from one’s reproductive abilities. Attaching one’s to enforce fines or summon public leaders to hearings. businesses more time to adapt to environmental policy in
a legal parent. As we know, this concept of ‘illegitimate reproductive ability to the definition of gender can be seen Combined with the proposal that the OEP’s funding a cost-effective manner is critically important as the Draft
children’ has less significant relevance to a child’s legal as controversial. More importantly, it creates a situation in will be decided by the Department for Environment, Bill’s commitment to the polluter pays principle could
rights in modern society. However, the emphasis on which the law does not reflect the reality. After all, from the
mothers as the primary legal parents persists, and indeed perspective of a trans man who gives birth, his child will
creates a conflict in relation to trans individuals’ rights to come to know him as father.
gender recognition. The HFEA was initially enacted in Challenging our legal position and practices to THE COMBINED EFFECT OF GROWING ENVIRONMENTAL PRESSURE AND BREXIT
the light of IVF treatments and children born through accept this trans reality would not, by any means, require HAS CREATED A UNIQUE OPPORTUNITY FOR ENVIRONMENTAL CHANGE.
surrogacy, and its role was to provide stability and certainty the neutralization or de-sexing of pregnancy. It would
in determining legal rights relating to such situations. In simply allow trans individuals a right to a comprehensive
order to avoid competing claims of legal parentage, it was recognition of their gender identity and preferred parental Food & Rural Affairs, and so not independent from the create environmental costs that add to the already high
decided that the person who bears the child should always title, and as such, protect their right to private and family government, this demonstrates that the OEP will be financial burden of Brexit. Consequently, while activists
be recognised as the mother. life under the European Convention on Human Rights. unable to adequately replace EU mechanisms in ensuring risk not receiving a Brexit as ‘green’ as they desire, the
While there have been many regulative advances According to the Council of Europe Guidelines, States the UK government upholds its environmental promises. danger that the UK will revert to lowering environmental
relating to transgender individuals’ rights to change and have an obligation to ‘guarantee the full recognition Therefore, no matter how ambitious the intention of standards is low.
have their preferred sex recognised formally, their parental of a person’s reassignment in all areas of life’, and in the government’s Bill, without capable enforcement The separatist drive that lies at the heart of Brexit exists
and reproductive rights have been widely overlooked. It is particular in relation to official documentation. In order mechanisms, the door is open for polluters in the UK to in stark contrast with the global harmony necessary to tackle
a fundamental part of human nature to value the ability to accommodate for such comprehensive recognition, our conduct environmental abuse. climate change. Yet, opportunity exists to make these two
to have children of our own and transgender individuals current legislation should be amended, conferring primary This reflects a wider issue in global environmental movements work together to strengthen environmental
are no exception to this. According to a recent Belgian legal parentage to the ‘gestational parent’ and allowing policy: governmental promises often far outweigh protection in the UK. However, it is a stretch to claim
survey, a vast majority of trans men wish to have biological them to self-determine their preferred parental title in a any tangible action. The Intergovernmental Panel on anything within the Draft Bill is ‘world-leading’ without
children, whether that be before, after or without formal way that respects their true gender identity. Climate Change report in October shocked the world by substantial enforcement mechanisms.

52 53
DICTA DICTA

FGM
UK Victims Deserve Better

Written and Illustrated by — DIANA M. PANIZZON-PINEDA

A girl is cut every 11 seconds. 200 million women and extra-territorial offence – along with the Prohibition of
girls have undergone Female Genital Mutilation (FGM) Female Genital Mutilation (Scotland) Act 2005 – which
worldwide. In some countries, it remains an accepted holds it unlawful to arrange for FGM to occur outside
and unquestioned cultural practice, the number of the country. The Serious Crimes Act 2015 introduced
victims being subjected to this barbaric violation of their both FGM Protection Orders as well as a further offence
bodies reaching heights of 98% and 97% of the female for failing to protect a girl. Anyone performing FGM
population in Somalia and Guinea respectively. This is, faces up to 14 years in prison; those who fail to protect a
however, not a form of abuse isolated only to the confines girl face up to 7.
of a single continent. Up until very recently, the UK had been heavily
City University estimates that 144,000 women and reprimanded for its shameful failure to secure any
girls are at risk of FGM in England and Wales, 137,000 FGM-related convictions in the past three decades, as
already living with it and the Home Office identifying expressed by the UN Committee on the Elimination
those from East African communities as being the most at of Discrimination Against Women. Following three
risk. There are four different categories which FGM falls acquittals, the UK only secured its first conviction in
under: type 1 is a clitoridectomy which involves removing February 2019 when the mother of a three year old girl
part or all of the clitoris; type 2 is excision, where part or was the first person found guilty of FGM in the UK.
all of the clitoris and the inner labia with or without the Police were alerted when the child was rushed to hospital
labia majora is removed; type 3 is infibulation, involving and operated on after losing a lot of blood. The girl
the narrowing of the vaginal opening by creating a seal as admitted that a ‘witch’ had cut her while her parents held
a result of cutting and repositioning the labia; and type her down, and indeed, spells and curses were found at
4 includes other harmful procedures such as burning, the house, including ox tongues with screws in them to
scraping and piercing – to name but a few. supposedly silence police, social workers, and lawyers.
FGM can occur at any point in a woman’s life, Although the landmark decision has finally sent a
whether at birth, during childhood, before marriage, or message that the UK will not tolerate such egregious
even during pregnancy. While some cultures believe the acts, Leyla Hussein – a survivor and activist – believes
procedure will benefit the girl – such as to preserve her more could have been done to help the mother who was
virginity before marriage – this is an abhorrent practice most likely unaware that FGM was wrong and may have

‘MANY GIRLS ARE CONDEMNED TO A LIFE OF PSYCHOLOGICAL TRAUMA.

OTHERS BECOME INFERTILE.

SOME DIE.

which is simply unjustifiable. There are no religious texts benefitted from a GP or midwife informing her. Another
which promote it, nor is there a religion which requires major problem generally faced is obtaining sufficient
it. evidence to secure a conviction, the average waiting
Devastating health consequences accompany this time for examination reaching almost two months, and
abuse. Many girls are condemned to a life of psychological sometimes over a year.
trauma. Others become infertile. Some die. Death occurs The UK still has a painfully long way to go to
from the very procedure as a result of blood loss or due protect FGM victims who reside within its very own
to infection, the agonizing torture and lack of dominion borders. More awareness must be raised. More timely
over her own body being the girl’s final memory. examinations must be ensured. More convictions must
The Prohibition of Female Circumcision Act 1985 be secured. As Audre Lorde rightly said, we cannot be
outlawed FGM in the UK, the Genital Mutilation Act free while any woman is unfree, even if her shackles are
2003 modernising the offence by extending it to assisting very different from our own. The fight against FGM is
a girl to carry out FGM on herself. It also created an just one step towards the global liberation of womankind.

54 55
 DICTA DICTA

given moment you’ll come up with the right answer to

a question. If you try to short cut the process, I think

A N I N T E RV I E W you’re liable to end up messing it up with a bad outcome.

After the Gina Miller case, it seemed to me that the
government was still intent on trying to avoid as much
parliamentary scrutiny as it possibly could and I thought

W ITH DOMINIC that was a mistake. I anticipated the fact that it was highly
likely that we would get to the end of this process without
reaching an agreement. So then to have a situation where
Parliament had no say in the matter I thought was a big

GRIEVE QC MP mistake; this is why I decided to work with colleagues. I’d

say I don’t think we should be allowing this to go through,
which is why the rebellion took place and delivered the

by a bdull a kh a l a f, munk ir an deo & khush kotech a

MY EXPERIENCE meaningful vote. What I actually did was to table and get
through an amendment which prevented the government
doing anything to take us out of the EU in terms of
AS A LAWYER implementing an eventual deal with the EU until there
had been a meaningful vote.

Dominic Grieve MP QC is a Conservative Member IS THAT IF YOU HOW WOULD YOU HAVE CONDUCTED THE BREXIT
of Parliament, representing Beaconsfield since 1997. He served
as the Attorney-General from 2010-2014. Recently, he has
GET THE PROCESS PROCESS DIFFERENTLY WERE YOU TO HAVE BEEN
THE ONE IN CHARGE?
That’s a very difficult question to answer. To blame the
been instrumental in increasing Parliamentary oversight on
Brexit, culminating in an amendment mandating
RIGHT THEN PM for the outcome of the negotiations seems to me to
be mistaken. In terms of what she was trying to achieve, I

IT PROBABLY
strongly suspect that she’s got the best deal available. We
a ‘meaningful vote’ on Theresa May’s deal. could have had a different leader but I doubt very much
that, except perhaps on the very fringes or the margins [of

MAXIMISES THE the deal], it would have made any difference. Negotiations
are between two power entities that have opposite views
coming together in the middle, and the middle is where

CHANCE THAT the power dynamics work. Where you have a country
of 65 million people negotiating with an entity of 450
million, it is likely that 450 million will have the edge on
WHAT PROMPTED YOU TO PURSUE A CAREER
IN LAW AS A BARRISTER?
consequences of the Finance Bill amendment will be, but
the way HMRC have been applying the rules in respect
AT ANY GIVEN the negotiations. That said, the criticism that can be made
of her is whether it was right that she should have decided

MOMENT YOU’LL
I went to university and I read history, not law, and I of loan charges strikes me as raising very considerable at the outset to impose such strict red lines on herself. I
hadn’t made up my mind to be a barrister. I can’t say I concerns about fairness. I did have a period around 2004– argued with her at the time that although the referendum
enjoyed studying law on the graduate conversion course. 06 where the then Labour government I thought had clearly showed great dissatisfaction with the single market
I found it rather sterile and it didn’t excite me very much,
but once I got into pupillage and started to do advocacy, I
completely lost all sense of proportion over terrorism and
was about to do things to our legal system that I regarded COME UP WITH or freedom of movement, in reality, Brexit could take a
number of forms and she should keep options open by
listening to people along the way. One might wonder
began to enjoy it a lot. I had 10 years in a mixed common as being extremely undesirable. Fortunately, we built
law set, something which does not really exist anymore.
Lots of cases stand out, many of which were interesting,
a cross-party coalition which stopped it, so that showed
Parliament working. I thought the idea of a 90 day pre-
THE RIGHT ANSWER whether greater flexibility might have helped.

TO A QUESTION.
entertaining, and led to an outcome that one might not charge detention was appalling and interestingly enough it
have expected. After 10 years, I decided that the chambers has never been needed. WHAT ONE THING WOULD YOU CHANGE ABOUT
I was in was unlikely to deliver the career development THE STATE OF BRITISH POLITICS AT THE MOMENT?
I wanted, as much as I liked being there, so I shifted to I would like British politics to become more rationally
other chambers that were specialised more in civil personal YOU PLAYED A SIGNIFICANT ROLE IN ALLOWING PARLIAMENT based, although, in fairness, in Parliament we are much
injury and employment law. A “MEANINGFUL VOTE” OVER THE BREXIT AGREEMENT. COULD more polite than people realise. I have perfectly cordial
YOU EXPLAIN TO US WHY SEEING THIS THROUGH WAS OF relations with ERG colleagues with whom I completely
PARTICULAR IMPORTANCE TO YOU? disagree. However, the national debate has become very
WHAT MOTIVATES YOU TO CHALLENGE AND REFORM THE LAW I can understand that the government was anxious discourteous and the trouble is that far from helping achieve
AND WHAT CONSIDERATIONS DO YOU KEEP IN MIND WHEN YOU about keeping control of a very difficult process. Their a solution, it just tends to make people more entrenched,
DO SO? instinctive reaction was to try and say the executive will and ultimately tends to warp people’s judgement. If you
As a pragmatic conservative, when I see something that deal with this and we will marginalise Parliament as much want a compromise, you need to be polite to the person
is about to happen which I think clearly needs to be as possible, although they may not have done it wilfully. with whom you are trying to achieve it with. If you start by
addressed because I think it is creating unfairness, I will My experience as a lawyer is that if you get the process having a confrontation it makes it much more likely that
try to do something about it. We don’t yet know what the right then it probably maximises the chance that at any compromise will never be achieved.

56 57
 DICTA DICTA

PIP
DIANA M. PANIZZON-PINEDA RYAN HARRISON ABDULLA KHALAF
Victimising the Vulnerable from Start to Finish Editor-in-Chief Traditional Editor Interview Editor
Remaining complacent to the lingering The law isn't always fair, and it doesn't The future of law is influenced by a
Written by — IONA HOLMES inadequacies in our legal system ensures always have its intended outcomes. changing understanding of justice in
they remain unexposed and unchallenged. Hopefully this edition of Dicta can offer light of volatile political and economic
We must educate ourselves, start an opening for further constructive conditions. Inevitably the arc of change
conversations, and demand purposeful thought on some of today's most bends towards whatever progression is
change where injustice prevails. pressing legal issues. perceived to be.

IN 2013, the government replaced the Disability Living assessment could vary depending on when they are assessed
Allowance with the Personal Independence Payment (PIP), and consequently, they are likely either to be awarded an
a benefit for those who require extra financial support due incorrect sum or denied any support at all. Even former top
to a long-term illness or disability. Although it has only civil servant, Andrew McDonald, admitted that he believed
been in operation for a short time, it has become clear the PIP process was perfectly adequate until experiencing it KHUSH KOTECHA JOEY MARSHALL MATTHEW LU
that the vulnerable claimants it is supposed to assist are himself, which shows that those at the heart of government Managing Editor Traditional Editor Online Editor
victims of an unnecessarily strenuous assessment and are unaware of how the systems they implement operate in As the next generation of lawyers, To mediate open discussion and Positive growth and change are
appeals procedure. Those applying for support on the new practice. we must always question and challenge appropriately highlight areas of law incapable of occurring when people
scheme are assessed according to two components: daily As the assessment is often conducted inadequately the law. This year’s Dicta shows that our that need improvement is what this become complacent and robotic.
living activities and mobility. Depending on how severely and support is wrongly denied, over 670,000 Mandatory legal system is rife with shortcomings, year’s issue of Dicta is all about. Dicta provides an important platform
impaired the claimant is considered to be for each of these Reconsiderations of PIP assessments have been ordered our duty is to instigate change. that allows constructive, academic
components, they could receive the benefit for one or both since 2013. This process has been critiqued for acting as a debate in a world prone to conformity.
of them at either a standard or enhanced rate, or receive ‘rubber stamp’ for the initial decisions; indeed, in over 80%
nothing at all. of cases no changes were made to the original outcome. The
only remaining option for claimants is to appeal through
the tribunal process. The most recent government figures
show that claimants have been successful in 108,000
THOSE AT THE HEART of 170,000 PIP appeals. At 63%, this staggering success
OF GOVERNMENT ARE rate exemplifies the deliberate harshness of the assessment
UNAWARE OF HOW THE procedure as once cases reach the tribunal stage, the
SYSTEMS THEY IMPLEMENT majority of decisions are overturned.
It is here that we reach the core of the issue – appeals MEGAN CARVER KATIE MCPHEE MIRABELLE TAN
OPERATE IN PRACTICE. Traditional Editor Traditional Editor Online Editor
should be a last resort, but they currently appear to be a
standard stage of the process for claimants to receive their It has been an absolute pleasure to work Without challenge, the law might Change is acquired by challenging
legal entitlements. This puts individuals, who are already with such talented writers in producing easily become removed from reality, the status quo. This year's edition of
The PIP process begins with the claimant completing vulnerable, under additional strain. One claimant even these fascinating pieces – our theme was both factually and morally. Once again, Dicta thus explores the ongoing struggles
a grueling 33-page form detailing how their disability or reported feeling like a ‘criminal’ for having to endure this certainly fitting for such an ‘interesting’ Dicta provides an undoubtedly necessary to procure sustainable progress in the
illness affects them, after which most claimants are invited process. This situation in which tribunal procedures are year in law and politics. platform for critical perspectives. legal sphere.
to a face-to-face assessment with a health professional. seemingly mandatory makes the welfare state and legal
The Work and Pensions Select Committee recognised the system appear threatening. Instead, the law should protect
shortfalls of this procedure in their report published in those at risk and operate as a safety net for occasional,
early 2018. Many claimants reported that the form was arbitrary failures in the system.
distressing and time-consuming enough, without the even In the past two years, the Department for Work and
heavier burden of an assessment in person. The supposed Pensions has spent over £100 million on PIP and ESA
‘professionals’ leading the assessments seem to lack appeals. This places a considerable financial burden on the
expertise or even basic knowledge of certain conditions. government and puts additional pressure on stretched pro-
For example, the Down’s Syndrome Association has reports bono resources as all forms of legal aid for PIP appeals were
GEORGIA ERIKSEN MUNKIRAN DEO
of families being asked when their child ‘caught’ Down’s axed four years ago. This money should be put to better
Traditional Editor Interview Editor
Syndrome. Furthermore, the assessors frequently make use supporting those in need, as opposed to forcing them
errors – one recorded that a claimant walked her dog daily to go through a lengthy, stressful and avoidable tribunal “It is not wisdom but authority that It is enlightening to see individuals in
when, in fact, she does not even have a dog and can barely procedure. Because of the excessive strain it puts on the makes a law.” – Thomas Hobbes our legal community who are prepared
move. government, pro-bono resources and most importantly, to challenge the law and push for
Irrespective of who is carrying out the procedure, the claimants, the PIP process must be challenged as a whole. This highlights the importance of improvements to better our society.
evidence requirements fail to capture the fluctuations in The burden should not be on claimants to repeatedly Dicta’s theme; law is far from perfect
illnesses. This means that the outcome of a claimant’s challenge the incorrect decisions made against them. and it ought to be challenged.

58 59
 DICTA

www.medium.com/dicta

60