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We are here to help you get through all years of the law degree and beyond, by showcasing to you how we can help you succeed. 

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The Nuclear Disarmament Cases: A New Formalism for the ICJ

March 1, 2017

In this article, Helen Peden (LLM in International Law) discusses the  recent Nuclear Disarmament judgments of the International Court of Justice, which mark the first dismissal of an applicant State for the non-existence of a dispute. The Court's introduction of a stricter test for jurisdiction may indicate a move to formalism for the ICJ.
 

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Are we naively restrained? : A critique on former US Solicitor General, Robert Bork’s view that vertical restraints are always in the best interest of consumers

February 21, 2017

In this article, Mashal Aamir (4th year LL.B), critically discusses the pro and anti-competitive effects of vertical restraints and the extent to which EU Competition law is in line with, or diverges from, Bork’s statement that vertical restraints should be lawful in the consumer interest
 

 

Are we naively restrained? : A critique on former US Solicitor General, Robert Bork’s view that vertical restraints are always in the best interest of consumers

 

Introduction

 

Vertical agreements are made between undertakings which operate on different levels of the production process, such as a supplier and retailer. The contractual restrictions employed in vertical agreements are called vertical restraints and are adopted, inter alia, for facilitating the distribution of goods and services.[1] Efficient distribution is a crucial part of business success, which in turn facilitates the economy. This is why the legal framework surrounding distribution arrangements are important and, in the past, the Commission’s treatment of vertical agreements have been criticized for being inefficient. In response to this the newest regulation is the Vertical Agreements Block Exemption Regulation 2010.[2]

 

With one of the goals of the single market being to increase competition, there is great debate over whether vertical restraints help facilitate that goal. Judge Bork has a strong stance that they do and always benefit consumers but I shall assess his conclusion after an overview of the effects and legality of vertical restraints and then the limits competition law place upon them.

 

What Bork fails to mention is that many of the positive and negative effects of vertical restraints is contingent on the context they are imposed in, it can vary in different scenarios but the main effects to consider are resale price maintenance (RPM), territorial restriction, the free rider problem and restriction of intra-brand competition. Territorial restriction remains an objectionable effect of vertical restraints particularly because it jars with the overriding EU goal of market integration and the role of competition law within the internal market. An effort is made to balance limitations on cross-border trade for distribution agreements and the procompetitive effects of imposing these agreements.

 

  1. Critique of Bork’s View

 

Bork believed vertical restraints should be lawful, as they were imposed to create efficiencies.[3] He is challenged for not making reference to different consumers, new or existing, as well as new or existing products. Vertical restraints are considered to assist the introduction of new products and provide net benefits, yet overall most contend Bork and feel a hostile approach should be taken.[4]

 

In comparison to horizontal restraints, vertical restraints are generally more favoured by the Commission, being regarded as less harmful. Bork was correct in saying vertical restraints have pro-competitive effects. Vertical restraints can be used to reduce transaction costs as well as other objectives, such as achieving efficiencies between firms at different levels of the production and distribution chain.[5] In its guidelines, the Commission highlights the vast range of efficiencies that are achieved due to vertical restraints.[6] Furthermore, a benefit based on vertical restraints is a potential solution for the free-rider-problem.[7]

 

Bork believed manufacturers impose vertical restraints as it encourages distributors to then supply certain customer services. He feels restraints are only imposed by manufacturers when the resulting factor is an increase of sales which in turn means higher profits.[8] In relation to how this benefits the consumers, they purchase more of the manufacturer’s product when the value of the supplementary services is greater than the addition cost the distributor adds on in order to cover their expenses.[9] Under Bork’s view, there is a corresponding interest with consumers and manufacturers, as vertical restraints encourage higher profits for the manufacturers, but only when consumers themselves received more marginal value from the increase of services. This is an ideal situation and under this assumption it is easy to say that all vertical restraints should be lawful, however not every scenario is clear cut and we shall look into areas where the interests of the consumer and the manufacturer do not align.

 

  1. Do Vertical Restraints Always Benefit Consumers?

 

A wide variety of choice is always desirable for a consumer, therefore they prefer strong intra-brand competition.[10] When distributors compete over the same product, they will reduce their profit margins and perhaps compete in a non-price way, all of which benefits consumers. Vertical restraints can detrimentally reduce intra-brand competition and create obstacles that prevent market integration, which is harmful to consumer interests.[11]

 

Bork can be criticized for using an overly simple test; that restrictions on output are anti-competitive, whilst increases in output are pro-competitive. Consequently, when a manufacturer imposes restraints these must be efficiency-enhancing as well as procompetitive, “otherwise, the manufacturer would not employ the restraint”.[12]

 

Comnor also notes Bork’s over-simplification, as “the efficiency of vertical restraints is far less certain” than Bork posits.[13] Bork acknowledged this but continued to argue that the manufacturer would still only use vertical restraints when the value added to the service for consumers increases the cost it entails.[14] Bork stood by his view that an increase in profits was the criteria for efficiency. We can criticize this for holding up only on the basis that consumer and manufacturer interests both coincide with each other, yet this is seldom the case, as both actors have different motives and aligning their interests involves some give and take, which Bork presumes in his analysis. However, Bork’s theory has gained popular acceptance due to the argument that vertical restraints would not be imposed by manufacturers - if consumers themselves did not find the new value of services is worth more than their cost. If this was not the case a rival could offer the same product without the additional services. Bork still fails to consider the fundamental economic rule that consumers are irrational, there will be differences between them over preferences for services and due to these differences their interests might not necessarily align with manufacturers interests.

 

Michael Spence argues that when manufacturers decide the amount of product to produce they only consider marginal consumers, those who are sensitive to a change in product.[15] He further analyses that not all consumers are marginal consumers- a distinction which Bork fails to make. Some consumers have inelastic demand preferences and therefore the change in price will not affect their demand for it, Spence argues it is only the preference of marginal consumers that determine if a change in the product will increase sales and consequentially manufacturer’s profit. Spence may over-emphasize the role of marginal consumers for it is the aggregate demand of all consumers that reflect any loss or gain for the manufacturers. However, what we can derive from him is the coinciding interests of manufacturers and consumers is not as clear cut as Bork basis his entire assumption on. This is why Spence says vertical restraints being imposed may not lead to an efficient result for the interests of infra-marginal consumers. It follows that if they make up the greater portion of customers that pay for unwanted services, this can exceed the benefit which marginal consumers derive. In conclusion simply because the manufacturer profits from services does not mean that consumers benefit from the supply of these, these services could even be oversupplied much beyond the optimum level for consumers.[16]

 

  1. The Detrimental Effects of Vertical Restraints

 

Previously a formalistic approach was adopted due to a wide interpretation of Article 101(1) TFEU and then under Regulation 17 many vertical agreements required exemption under Article 101(3). This was a slow process for it was just the Commission which had sole power to grant exemptions while a formalistic approached hindered efficiency in distribution. VABER[17] gave a more general solution under Article 101(3) while the Commission notes in its Guidelines on Vertical Restraints that the focus under Article 101(1) will be based on the economic effects of vertical agreements as well as agreements involving market power or foreclosing access to markets.

 

Though the commission has shifted from a formal approach to a more economics based approach, economic theory on its own is not sufficient in predicting whether imposing vertical restrains will benefit consumers. Consumer benefit is contingent on whether the gains to marginal consumers outweigh the losses to infra marginal consumers.[18] As a sect of consumers who are infra-marginal can lose out, especially when vertical restraints are applied to established products, then there is a portion of consumers that can be harmed by them.

 

As mentioned, vertical restraints can be detrimental when infra-marginal consumers do not place as much value on the extra services as marginal consumers do. This can be due to different reasons, firstly vertical restraints often support services being provided such as advertising due to the fact that the free-rider problem is prevalent in this aspect. When a new product enters a market vertical restrains can increase consumer welfare because there will be a demand for information about these products, under these conditions vertical agreements are more favourable and beneficial. Without vertical restrictions for new products the distributor might not distribute the product at all, which is why it has been recognized that certain distributions agreements need territorial protection, as seen in Societe La Technique when Article 101(1) is not breached if the term is essential for the distributor to market the product.[19] Therefore limited territorial exclusivity is permissible but it is not lawful to completely obstruct parallel imports. Consten and Grundig established the ban on absolute territorial protection.[20] We can see a strict approach here is necessary, for these restrictions can hinder the market by isolating national markets. It is important to have some sort of parallel trade from outside territory.

 

However, most consumers who regularly purchase the product as less likely to value the additional services due to their prior knowledge of the product. This highlights the complexity of consumer preference which Bork fails to consider. Producers may therefore be supplying services in excess of demand. The way these consumers are divided into infra marginal and marginal consumers is relevant to the response in additional services and whether vertical restraints are overall effective or detrimental.  In this scenario it is better off not to have vertical restraints and we can argue they should be unlawful.

 

A key reason vertical restraints are imposed is to combat the free rider problem amongst distributors of the same product. Telser felt manufacturers benefit from RPM as the quantity sold depends on the final price paid by consumers so the manufacturer gains from competition between dealers to decrease distribution margins.[21] If rival products are fairly similar, not only does this increase competition but the free rider problem could still prevail even with vertical restraints. Say a manufacturer were to impose the restraints and provide services alongside their product, consumers can benefit from these services but then seek out a rival manufacturer’s similar product which is sold at a lower price. This renders the vertical restraint ineffective and the free rider problem prevails. It reflects that the products amongst rivals should be sufficiently different or unique enough for the imposition of a vertical restraint to be effective.

 

Therefore, when a vertical restraint is adopted in the context of promoting a provision of distribution services the relevant question from a competition law perspective is whether consumers are better off with the higher price and additional services or if they were in fact better off with the lower price and no additional services. As its effectiveness in relation to consumer welfare depends upon the context it is not, as Bork suggests, always beneficial to consumers.

 

There are also challenges such as the hold-up problem, this is when you are making a very specific investment to a transaction or a product in the hope that a manufacturer commits with you to sell these products. It is called a hold-up problem because when the party makes an investment that is very specific to you, they have stronger bargaining power and it restricts other competitor’s products being given the same opportunity.[22] This is another type of economic problem that may prevent markets from running efficiently.

 

We can counteract this argument with that of economies of scale for there may be efficiency of vertical agreements because when a manufacturer can plan with more certainty its production and there is more output it can lead to economies of scale. Economies of scale benefit consumers when the manufacturer’s efficiency gains pass on as lower prices.

 

  1. Balancing Objectives 

 

The court has generally taken a flexible approach to considering when by Art 101(1) there has been a restriction of competition. We should look to territorial restraints which are significant for vertical agreements. On appeal the court in Consten and Grundig stated that unless the object of the agreement is to restrict trade, an analysis of the effects of the agreement is needed.[23] The court stated absolute territorial protection is prohibited under Article 101(1) and emphasized the Commission should have prohibited the creation of absolute territorial protection- but not other clauses in the agreement. Though this was a decisive case where it was show the provision of territorial exclusivity did not infringe Article 101(1), this was balanced against prohibiting absolute territorial protection- the line has since been clouded however in cases (Van Vliet) which reflected a more restrictive approach to exclusive distribution agreements.[24] Even following the implementation of VABER, the approach to territorial restrictions have not prominently changed.

 

There has been recognition that a more flexible approach should be given to vertical restraints and we have seen that in some judgements ancillary restraints may not infringe Article 101(1).[25]

 

The ‘umbrella exception’ approach under Regulation 330/2010 of VABER increases flexibility by having a list of prohibited restraints which permits non-prohibited restraints.[26] One Block exemption regulation covers all vertical agreements which also adds to flexibility. Finally a safe haven is created where the market share of either seller or buyer does not exceed 30%, this is a key element of the regulation while there is a black list of hard core restrictions, including RPM, in Article 4. Indeed, many vertical agreements may not infringe Article 101(1) therefore do not require exemptions under the Regulation for they could satisfy the Delimitis principle.[27]

 

The Commission has set a four-stage approach for analysis in the Guidelines on Vertical Restraints.[28] Firstly, the relevant market should be defined for parties and market share should be understood. Then, if market share is not in excess of 30% the agreement will be covered by the Regulation if there is no hard-core restraints. If there is higher than a 30% share an assessment will be undertook if the agreement is covered by Article 101(1) or further falls into the terms of article 101(3). We see the commissions general concern here is of a lack of inter-brand competition, for this is viewed to be more harmful than a reduction of intra-brand competition.

 

The issues facing competition law is balancing restrictions on intra-brand competition through territorial exclusivity while avoiding trade restrictions which are contrary to the market integration objective.

 

  1. The American Approach

 

In the US, the Supreme Court in Leegin[29] overturned the rule established in Dr Miles Medical Co.[30] The rule was that RPM is illegal per se, and instead this was now to be assessed under their rule of reason. In the EU, RPM remains a “hard-core” restraint under VABER, it is routinely prohibited under Art 101(1).[31] It is often argued that the EU should follow this stance however I feel we should bear in mind that though these two separate stances are often compared, a comparison of EU competition law to USA antitrust law is not always helpful or even useful, mainly because of the distinguished goals and situations we have under EU Law and its objectives of the internal market, the EU would need unique laws to facilitate this objective which is not the case for its America counterpart, while the Rule of Reason can also be criticised for its lack of certainty. There is also a big contrast in the different laws, due to Article 101(3) there is less pressure of Article 101(1) in comparison to The Shearman Act s1, to reduce a restriction of competition. EU law has a distinction, unlike the US law where vertical restraints are separated by those which have the object of restricting competition and are per se prohibited under Article 101(1) and those which require an economic analysis of the agreement’s effects.

 

 

 

Conclusion

 

There are upsides and downsides to vertical restraints and the Chicago School support distribution restraints due to the free-rider problem.[32]  Their argument is that intra-brand protection is necessary to allow distributors to effectively promote their brand and increase inter-brand competition.[33] Therefore, vertical restraints would only be harmful if a broad approach was taken where parties had market power and therefore inter-brand competition was weak.

 

Vertical restraints generally have both pro and anti-competitive effects. The same restraint can have very different effects depending on the context, which Bork failed to consider and we see that in certain instances, such as closed territories, illegality is beneficial. Thus no per-se rules are appropriate to handle vertical restraints. An economic expert opinion may facilitate the self-assessment of companies as required by EC competition law. Overall, in absence of significant market power at the manufacturer’s or retailer’s level, it is unlikely that vertical restraints are socially undesirable.[34]

 

 

[1] Rodger and MacCulloch, Competition Law and Policy in the UK and EU, Routledge (2015) p.194

[2] See Commission Guidelines of Vertical Restraints, (2010) OJ C130/1 and Commission Regulation 330/2010/EU on the application of Art 101(3) TFEU to vertical agreements and concerted practices, (2010) OJ L102.1.

[3] Bork, R The Antitrust Paradox, A Policy at War with Itself (1993) Oxford, Chapters 14-15

[4] Comanor, WS, Vertical Price Fixing, Vertical Market Restrictions and the New Antitrust Policy (1984) 98 Harvard Law Review 983.

[5] P.Rey The economics of vertical restraints, IDEI, Speech at Cargese, (2004)

[6] EC Commission, Guidelines Article 101(3), para. 33

[7] D.Boyd, Vertical Restraints and the Retail Free Riding Problem: An Austrian Perspective, (1996) The Review of Austrian Economics, Vol. 9, No. 1 pp. 119-134

[8] Bork, The Rule of Reason and the Per Se Concept; Price Fixing and Market Division (pt.2) Yale L.J 373 (1966)

[9] Bork, A reply to Professor Gould and Yamey, 76 Yale L.J 731 pg. 741-743 (1967)

[10] Competition among distributors or retailers of the same branded product

[11] M.Hughes/C.Foss/K.Ross, The Economic Assessment of Vertical Restraints Under U.K. and E.C: Competition Law, (2001) ECLR p. 427

[12]  Bork note 6 at 403

[13] Comnor note 4 page 989

[14] Bork note 7 at 733-734

[15] Spence, Monopoly, quality and regulation. 6 Bell K. Econ (1975) 417

[16] Comnor note 4 page 992

[17] Vertical Agreements Block Exemption Regulations. See Commission Guidelines on Vertical Restraints (2010) OJ C130/1 and Commission regulation 330/2010/EU on application of Art.101(3) TFEU to vertical agreements. 

[18] Comnor note 4 page 999

[19] Societe La Technique Miniere Case 56/65 (1996) ECR 235

[20] Case 58/64

[21] Tesler Why Should Manufacturers Want Fair Trade? 3.L.J & Econ. 86 (1960)

[22] Van den Bergh Foods Ltd v Commission, Case T-65/98, General Court, [2003] ECR II-4653, [2004] 4 CMLR

[23] Etablissemenet Consten SA and Grundig Verkaufs-GmbH v Commission Case 56 and 58/64 (1966) ECR 299.

[24] Van Vliet Kwasten & Ladderfabrieke v Fratelli Dalle Crode Case 25/75 (1975) ECR 1103

[25] Remia BV and Others v Commission Case 42/85 (1985) ECR 2545 and Pronuptia de Paris GmbH v Pronuptia de Paris Irmgard Schillgalis Case 161/84  (1986) ECR

[26] Commission Regulation 330/2010/EU on application of Art 101(3) TFEU (2010) OJ L102/1

[27] Stergios Delimitis v Henninger Bräu AG. Case C-234/89. European Court Reports 1991 I-00935

[28] SEC (2010) 411 final.

[29] Leegin Creative Leather Products Inc v PSKS Inc 127 SCT 2705 US (2007)

[30] Dr Miles Medical Co v John D Park & Son Co 220 US 373 (1911)

[31] Case 161/84 Pronuptia de Paris GmbH v Pronuptia de Paris Irmgard Schillgalis (1986) ECR 353 and  Louis Erauw-Jacquery v La Hesbignonne Case 27/87 (1988) ECR 1919

[32] Marvel, HP, The resale Pirce Maintenance Controversy; Beyond Conventional Wisdom (1994) 63 Antitrust LJ 59, pg.69-71

[33] Tesler, LG, Why should manufacturers want fair trade? (1960) 3 LJ & Econ 86.

[34] Dr.Hildebrand Economic analyses of vertical agreements: a self-assessment  Kluwer Law International (2005)

 

In Scotland, no inference may be drawn at trial from the fact that a suspect refused to answer questions put to him or her by the police. Should this rule be changed?

February 20, 2017

In this essay, Nicole Hannah (4th year LL.B ) discusses the recent Lord Carloway review, and whether the right to silence ought to be qualified to allow adverse inferences to be drawn from a suspect's silence during police questioning. 

In Scotland, no inference may be drawn at trial from the fact that a suspect refused to answer questions put to him or her by the police. Should this rule be changed?

Introduction

In Scotland today there is an almost, absolute right to silence,[1] and the law provides that adverse inferences may not be drawn from a suspects silence during police questioning.[2] However, in England and Wales it has been the case for a number of years that adverse inferences can be drawn from this type of silence.[3] The Lord Carloway review recently considered adopting this position in Scotland, but ultimately, Lord Carloway recommended that the proposals be rejected.[4] He did not feel the provisions would fit well with the Scottish principles on the presumption of innocence, the right to silence and the privilege against self-incrimination.[5] It was also felt that that the provisions would “bring unnecessary complexity to the criminal justice system.[6] Overall, I agree with Lord Carloway’s recommendation, but I do not agree with all of the reasoning behind his decision, and in this essay I will seek to demonstrate why.

The privilege against self-incrimination

The first reason which Lord Carloway gave for rejecting adverse inference provisions was that they could conflict with the protection of three important principles: the right to silence, the presumption of innocence, and the privilege against self-incrimination.[7] I would argue the former two principles fall under the overarching ‘umbrella’ of the privilege against self-incrimination, as the right to silence is regarded by many as “a component of the over-arching privilege against self-incrimination”,[8] and the presumption of innocence provides one of the main rationales behind the privilege.[9] Therefore, I will focus on this principle when making my argument.

A basic definition of the privilege is that a suspect shall not be forced to provide evidence against themselves in the course of a criminal investigation and trial.[10] At the stage of police questioning, Mirfield stated that it meant the police should not “engage the will of the suspect so as to compel him to provide evidence against himself.”[11] It could be argued that any qualification to the right of silence – such as introducing adverse inference provisions – would conflict with this principle. However, I do not think adverse inference provisions should be rejected on this basis. I will begin my argument by critically examining the main rationales behind the privilege against self-incrimination (as outlined by Roberts and Zuckerman),[12] and demonstrating that the protection of the privilege is not a valid reason for rejecting adverse inference provisions.

The Presumption of Innocence

One of the main rationales behind the privilege against self-incrimination is that it is ‘conceptually implied’ by the presumption of innocence.[13] A basic interpretation of the presumption of innocence is that it requires “the State to prove its case beyond reasonable doubt”,[14] and Roberts and Zuckerman make the point that drawing adverse inferences from a suspect’s silence doesn’t “dilute” the burden of proof, it merely “contributes to discharging” it.[15]  This suggests that adverse inference provisions would not conflict with the presumption of innocence. However, another interpretation of the presumption of innocence, the “no assistance principle”,[16] is the State should have to prove its case without the help of the suspect.[17] So, it would logically follow that the state may not rely on a suspect’s silence as evidence. However, if this was the true meaning of the presumption of innocence in Scotland, then why does the law allow the police to take bodily samples from suspects?[18] This is a clear example of the suspect being forced to assist the State, and potentially provide evidence against him or herself. If this conforms with the presumption of innocence, then there is no reason in principle, why adverse inference provisions would not also. Furthermore, the “purpose of the presumption of innocence is not to make the State’s job difficult”,[19]  and this is arguably the position which the ‘no assistance’ principle is putting forward.

The European Convention on Human Right provides that for a fair trial to occur there must be a presumption of innocence[20]. Furthermore, the European Court of Human Rights (hereafter the ECtHR), has previously suggested that the privilege against self-incrimination could be implied into the presumption of innocence provision in Article 6(2) of the Convention.[21] However, the ECtHR has made it clear that qualifications to the right of silence – such as the adverse inference provisions introduced in England - will not automatically breach Article 6.[22] The fact that the ECtHR has “afforded legitimacy”[23] to adverse inference provisions in terms of Article 6(2), arguably demonstrates that the presumption of innocence would be no barrier to Scotland implementing similar provisions.

Privacy

A further rationale behind the privilege against self-incrimination is that it protects a person’s privacy, as it ‘permits the accused to keep his knowledge to himself’[24]. Galligan outlines the importance of privacy by describing how “it protects personal identity and autonomy. Without a zone of privacy, identity, personality, autonomy cannot exist”.[25] The importance of privacy is further demonstrated, by the fact it is protected under Article 8 of the European Convention on Human Rights.[26] However, privacy is clearly a qualified right under the Convention,[27] so an encroachment upon an individual’s privacy may be justified. In Scotland, the State may encroach upon a citizen’s privacy in a number of ways, in order to pursue criminal justice aims. Suspects can be detained for a period up to 24 hours,[28] there are statutory provisions which compel car owners to inform the police of a car’s driver at the time of a road traffic offence,[29] and taking bodily samples from a suspect is also permitted in Scotland.[30]

It is clear that the right to privacy – although important – is overwhelmingly qualified in Scotland when it comes to criminal justice. Privacy is all about the individual person and while this individualism is important, “it remains the case that civilisation requires an enormous amount of co-operative effort”.[31] Criminal justice serves an extremely important purpose for society as a whole, and it is clear that this will justify an incursion on the privacy of an individual. Furthermore, drawing adverse inferences from a suspects silence will not be as invasive on an accused person as many of the other investigative methods already permitted in Scotland. The principle of privacy is not a viable justification behind blocking the introduction of adverse inference provisions in Scotland.

Cruel Choices

Another rationale behind the privilege against self-incrimination is that, without it, accused persons could be forced into making a cruel choice between: “providing the authorities with incriminating information, or a lie”.[32] It is argued that the criminal justice system should make allowances for this “human failing”,[33] and not force suspects to make this choice, by allowing suspects to remain silent during questioning – without drawing adverse inferences. The main weakness in that argument is that it is based on the underlying presumption that the accused is guilty.[34] Although, it is true that innocent people can arguably be faced with a similar type of cruel choice.[35] Bentham argued that an innocent person will happily “claim the right of speaking”, and only guilty people who will want to stay silent,[36] but there are situations where an innocent suspect will not wish to incriminate the real culprit.[37] However, if we really want to protect people from having to “other-incriminate” then why do we not allow criminal trial witnesses this right to silence?[38]

The answer to that question is that whilst making a cruel choice demands some kind of “personal sacrifice”[39] from an individual, this is arguably justified by the need the criminal justice system has to access incriminating information. Bentham described the “hardship” faced by the cruel choice as the “old woman’s reason”[40]. Society chooses to inflict heavy punishment upon criminals therefore; it is “pusillanimous to recoil from the lesser hardship of questioning criminal suspects… and giving their silence whatever probative value it might merit”.[41] Allowing adverse inferences to be drawn from a suspect’s silence during police questioning may leave the suspect with a cruel choice - but as with other “harsh” measures which seek to deliver criminal justice - this is justified. Furthermore, it mustn’t be forgotten that adverse inference provisions wouldn’t actually force a suspect to make the choice, as suspects would still have the option to remain silent.

 

Wrongful Conviction

A significant rationale behind the privilege against self-incrimination is that it protects people from wrongful conviction.[42] The wrongful conviction of an innocent person is “considered a species of moral harm so severe as to warrant special measures to prevent its occurrence[43]. So, of course, if such an important aim was being served as a result of an unqualified right to silence then it would be more than justified. The obvious argument is that adverse inference provisions could “increase the pressure on suspects to talk”[44] during police questioning, and this could lead to innocent people accidentally incriminating themselves. However, one could make a case that the type of vulnerable suspects who will be at risk here, are likely to be the type of suspects who are particularly susceptible to waiving their right to silence anyway even if adverse inferences were not drawn.[45] It is unlikely that adverse inference provisions would make much of a difference in this respect. In any case, there are a number of other protections for suspects during police questioning available in Scotland anyway. Every suspect now has the right to legal advice when they are detained by the police[46]. Of course, only an estimated 25% of suspects will actually utilise this right,[47] but in England and Wales (where the right has existed for longer[48]) an estimated 45% of suspects take up legal assistance.[49] This figure is still low, but it does suggest that the Scottish uptake could improve in the future. In any case, there are other safeguards for suspects in Scotland such as a maximum 24 hour detention period[50] - which is far lower than the 72 hour limit in England and Wales.[51] Furthermore, the corroboration requirement is another unique safeguard from wrongful conviction in Scotland.[52] So, it could be argued that in Scotland there are already sufficient measures in place to protect innocent people from wrongful conviction, and adverse inference provisions are unlikely to remove any useful protections for suspects.

 

However, there is a theory formulated by Seidmann and Stein which argues adverse inference provisions could encourage guilty suspects to just lie instead of staying silent, and this would then pool with the innocent suspects honest answers[53]. Consequentially, fact-finders would struggle to distinguish between guilty suspects and innocent suspects.[54] The obvious weakness to this theory is that, if guilty people are willing to lie then they would probably still lie even if adverse inferences were not drawn from their silence.[55] Furthermore, it is likely that investigators are already aware of this, so introducing adverse inference provisions would probably not lead to an innocent suspect’s answers being treated with any more scepticism than they already are.[56]

 

In any event, the major issue with the assertion that introducing adverse inference provisions could lead to more wrongful convictions is the fact that the conviction rates in England and Wales have remained static since adverse inference provisions were introduced there.[57] The number of confessions made has also remained unchanged.[58] If the provisions have not made any difference to the conviction rate, this suggests that they have probably not had any impact upon the number of wrongful convictions either, and they would be unlikely to have this effect in Scotland.

 

Practical Issues

So far, I have argued that Lord Carloway’s first reason for recommending against adverse inference provisions being introduced in Scotland was unjustified. However, I now hope to demonstrate that Lord Carloway still made the correct decision overall. The second reason which he gave for the decision was that adverse inference provisions had made the system in England and Wales too complicated in terms of disclosure arrangements.[59] However, I think a better argument would be that the provisions have made the law in England and Wales far too confusing,[60] and this has been done for no good reason as the provisions have arguably brought no practical benefits to the system. 

 

I have come to this conclusion from examining the situation in England and Wales where commentators have argued that the provisions have actually caused more trouble for the Courts than they have solved.[61] The main reason for this is that, in order for the adverse inference provisions to comply with Article 6 requirements, it has been necessary to introduce additional safeguards. In Murray the ECtHR made it clear that adverse inferences can be drawn in certain circumstances.[62] However, in the later case of Condron the ECtHR also made it clear that “particular caution is required” when drawing these inferences,[63] and sufficient safeguards for the defence were necessary – such as clear and detailed jury directions on the matter at trial.[64] In this case they decided the applicant had not had a fair trial as the jury directions given by the trial court were inadequate,[65] as a result, the guidance on jury directions in England and Wales now runs up to 12 pages long.[66] Furthermore, there has been a lot of “unsatisfactory” case law in England on the topic of whether adverse inferences should be drawn when a suspect stayed silent on the advice of a solicitor.[67] It is clear the Courts in England and Wales have struggled to interpret the provisions in line with the common law and Article 6, and the Court of Appeal has described the adverse inference provisions as a minefield.[68] The provisions have caused confusion and complications, and this is a situation which would most likely be replicated in Scotland if adverse inference provisions were implemented.

 

Furthermore, if we look at the situation in England and Wales it appears adverse inference provisions have made little difference to criminal justice. It appears there has been a slight decrease in suspects utilising their right to silence from 10% to 6%.[69] However, this has not resulted in any more confessions being made by suspects,[70] and the conviction rate has remained static.[71] So, it appears that not only have adverse inference provisions caused the law in England and Wales to become unnecessarily complicated, but they have also failed to actually bring any tangible benefits to the system there.

 

Conclusion

To conclude, I do not believe that Scotland should allow adverse inferences to be drawn from a suspect's silence during police questioning. However, I have not come to this conclusion on the same basis as the Carloway review did.   I do not believe that the protection of the privilege against self-incrimination – and the other principles which fall under the privilege ‘umbrella’ – is a justifiable reason for rejecting adverse inference provisions. I have outlined the four main rationales behind the privilege against self-incrimination, and adverse inference provisions wouldn’t conflict with important principles such as the presumption of innocence and the prevention of wrongful conviction. Adverse inference provisions may conflict with an individual’s privacy rights and it may force suspects to make cruel choices, but these are both principles which can be compromised, because society as a whole has an interest in ensuring criminal justice aims are met. Therefore, the Carloway review was not justified in their reasoning here.

 

Instead, my conclusion is based on the fact that adverse inference provisions would bring no practical benefit to the criminal justice system in Scotland. As far as can be seen in England and Wales, the provisions have made little difference in practice. Furthermore, the provisions have caused the law in England and Wales to become overly complicated, and the Courts have struggled to interpret the provisions correctly. Therefore, I think my proper conclusion is that while there is no good reason in principle why adverse inference provisions should not be implemented in Scotland, there is no real benefit to be had in pursuing the provisions either.

 

 

[1] J Chalmers and F Leverick, “Substantial and radical change: a new dawn for Scottish criminal procedure” (2012) 75 MLR 842 p857

[2] Larkin V HM Advocate 2005 S.L.T. 1087 p 5

[3] Criminal Justice and Public order Act 1994 c. 33 s34

[4] The Carloway Review, Report and Recommendations, 17 November 2011, www.scotland.gov.uk/About/Review/CarlowayReview p328

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] J Chalmers and F Leverick, “Substantial and radical change” p858

[9] P Roberts and A Zuckerman, Criminal Evidence, 2nd ed. (Oxford, 2010, p552)

[10] M Redmayne, ‘Rethinking the privilege against self-incrimination’ (2007) 27 OJLS 209 p209

[11] I Dennis, The Law of Evidence, 4th ed., (London, 2010) p 153

[12] P Roberts and A Zuckerman, Criminal Evidence, p548

[13] P Roberts and A Zuckerman, Criminal Evidence, p552

[14] M Redmayne, ‘Rethinking the privilege ‘p218

[15] P Roberts and A Zuckerman, Criminal Evidence, p554

[16] M Redmayne ‘Rethinking the privilege’ p219

[17] I Dennis ‘International protection, human right, or fundamental necessity? Re-assessing the privilege against self-incrimination’ (1995) 54 Cambridge Law Journal 342  p354

[18] Criminal Procedure (Scotland) Act 1995 c.46,  s18

[19] M Redmayne, ‘Rethinking the privilege’ p219

[20] European Convention on Human Rights, Article 6(2)

[21] Saunders v United Kingdom No. 19187/91 (1997) 23 E.H.R.R. 313 p24

[22] Murray v United Kingdom No. 18731/91 (1996) 22 E.H.R.R. 29 p33

[23] PB Glover, “Proceed with caution(s): a critique of the Carloway Review's rejection of statutory adverse inference provisions in Scottish criminal law”  (2013) 4 Aberdeen Student Law Review 1 p14

[24] P Roberts and A Zuckerman, Criminal Evidence, p551

[25] I Dennis, ‘International protection, human right or functional necessity?’ p356

[26] ECHR, Article 8

[27] ECHR, Article 8(2)

[28] CPSA 1995, s14(2)

[29] Road Traffic Act 1988 c.52, s172

[30] CPSA 1995, s18

[31] P Roberts and A Zuckerman, Criminal Evidence, p552

[32] M Redmayne, ‘Rethinking the privilege’ p221

[33] P Roberts and A Zuckerman, Criminal Evidence, p549

[34] I Dennis, ‘International protection, human right or functional necessity?’ p359

[35] M Redmayne, ‘Rethinking the privilege’ p222

[36] A Sanders, R Young, and M Burton, Criminal Justice, 4th ed. (Oxford 2010) p260ish

[37] M Redmayne, ‘Rethinking the privilege’ p222

[38] Ibid

[39] M Redmayne, ‘Rethinking the privilege’ p224

[40] P Roberts and A Zuckerman, Criminal Evidence, p549

[41] Ibid.

[42] J Chalmers and F Leverick, ‘Substantial and radical change’ p 858

[43] I Dennis, ‘International protection, human right or fundamental necessity?’ p348

[44] M Redmayne, ‘Rethinking the privilege’ p220

[45] A Ashworth and M Redmayne ‘The Criminal Process’ 4th ed. (Oxford, 2010) p102

[46] CPSA 1995, s15

[47] J Chambers and F Leverick, ‘Substantial and radical change’ p847

[48] Police and Criminal Evidence Act 1984 c.60, s58(1)

[49] F Leverick, ‘The right to legal assistance during detention’ (2011) 15 Edin LR 352  p368

[50] CPSA 1995, s14(2A)

[51] PACE 1994, ss43-44

[52] CPSA 1995,  ss97 and 160

[53] M Redmayne, ‘Rethinking the privilege’ p220

[54] P Roberts and A Zuckerman, Criminal Evidence, p562

[55] Ibid.

[56] Ibid.

[57] A Ashworth and M Redmayne, The Criminal Process, p106

[58] Ibid.

[59] J Chalmers and F Leverick, ‘Substantial and radical change’ p859

[60] Ibid.

[61] A Sanders, M Young, and R Burton, Criminal Justice, p272

[62] Ibid.

[63] Condron v United Kingdom No. 35718/97 (2001) 31 E.H.R.R. 1 p21

[64] A Ashworth and M Redmayne, The Criminal Process, p103

[65] Condron V UK (2001) p23

[66] J Chalmers and F Leverick, ‘Substantial and radical change’ p859

[67] A Ashworth and M Redmayne, The Criminal Process, p104

[68] A Sanders, M Young and R Burton, Criminal Justice, p272

[69] T Bucke, R Street, and D Brown ‘The right of silence: the impact of the Criminal Justice and Public Order Act 1994’ Home Office Research Study 199  http://www.lawteacher.net/PDF/english-legal-system/Right%20to%20Silence.pdf p31

[70] T Bucke, R Street, and D Brown ‘The right of silence’ p34

[71] A Ashworth and M Redmayne, The Criminal Process, p106

“In Scotland, no adverse inference may be drawn at trial from the fact that a suspect refused to answer questions put to him or her by the police. Should this rule be changed?”

February 20, 2017

In this article, Ikra Bhatti (4th year LLB) discusses the rationales for the privilege against self-incrimination and argues that it may be worthwhile to reform the current position and allow adverse inferences to be drawn from a suspects refusal to answer questions put to them.

 

 

“In Scotland, no adverse inference may be drawn at trial from the fact that a suspect refused to answer questions put to him or her by the police. Should this rule be changed?”

 

Introduction

The right to silence,[1] and in particular the fact that no adverse inferences may be drawn from a suspect’s decision to exercise this right[2], has been a longstanding principle in the Scottish criminal justice system. The fact that adverse inferences cannot be drawn, sometimes referred to as the ‘privilege against self-incrimination’[3], whereby a suspect cannot be compelled to provide information, which may be damaging to him at trial[4], has been the subject of much debate. This essay will consider the reasons why we have this rule and what the effects would be if it were to be altered to allow adverse inferences to be drawn from its exercise. An evaluation will be made of the prominent arguments both in favour of the introduction of adverse inferences and the continuance of the current position. Finally, a conclusion will be drawn to say whether, considering these arguments, adverse inferences should be drawn from a suspect’s refusals to answer police questions.

 

The current position

The law of Scotland as it currently stands affords suspects the right to silence during police questioning[5] and, beyond this, affords suspects the right not to have this silence negatively affect them in court[6]. Although a review of this position was undertaken by Lord Carloway, he rejected the introduction of adverse inference being drawn from the exercise of the right to silence. He argued that this would not comply with the presumption of innocence, the right to silence and the privilege against self-incrimination and that this would bring complexity to the process[7].

 

One of the main rationales, therefore, for allowing such a right includes adhering to Article 6 of the European Convention on Human Rights[8].  Although not expressly mentioned in the wording of the Convention, per the European Court of Human Rights, the right to silence and privilege against self-incrimination are “generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6”[9].

 

The Scottish position differs from the position in England and Wales where adverse inferences may be drawn from the silence of a suspect in certain circumstances[10].

 

Why have the privilege?

 

Allowing adverse inferences to be drawn from a suspect’s refusal to answer questions put to them would be an indirect qualification of the suspect’s right to silence[11]. To conclude on whether this should be allowed in the Scottish criminal justice system, we must consider why we have the existing rule on the unqualified right to silence.  Roberts and Zuckerman[12] break down the reasons for the right into three main categories:

  1. Intrinsic rationales
  2. Conceptualist rationales
  3. Instrumental rationales.

Each of these will be considered in turn. 

 

1. Intrinsic Rationales          

The intrinsic rationales for the privilege against self-incrimination can be broadly divided into two categories: the protection of privacy and the protection from cruel choices[13].

Although it is a qualified right[14], Article 8 of the ECHR protects a person’s right to private and family life.  It is argued that the introduction of adverse inferences will effectively force suspects into providing information which may be disadvantageous to their case[15]. This is an infringement of this Article 8 right.

 

This argument lacks vigour in justifying the privilege. It forces one to balance the interests of one individual against those of society as a whole, as prosecution is in the public interest. This argument has a utilitarian centre and when we approach the question of whether adverse inferences should remain prohibited, it must be said that this is not one of the stronger arguments for this proposition – there is a human instinct to protect the interests of many in comparison to protecting the interests of a single individual.

 

As well as this, privacy is not completely protected in any case. A suspect does not have the right to prevent bodily samples, fingerprints or breath samples from being taken[16]. Evidently, the privacy of the individual is not protected completely and if this is already the case, it is unclear why one would consider the introduction of adverse inferences to be the single factor which pushes the criminal justice system into the position of breaching a suspect’s right.

 

Insofar as the protection from cruel choices is concerned, the main argument here is that by allowing adverse inferences to be drawn from a suspect’s exercise of the right to silence, we are effectively forcing the suspect to give information that will be harmful to his defence[17]. An alternative to this is that the suspect gives false information and thereby opens himself up to the possibility of a perjury charge. The current position allows suspects not to mislead the police and at the same time not to harm their own defence.

 

Again, it must be said that this is a weak rationale. The theory here grows from the assumption that the suspect is guilty[18]. After all, would an innocent suspect refuse to give information that would prove their innocence? This is highly unlikely, especially when we consider the fact that a suspect’s words are less likely to be taken out of context with the provisions on the right to legal assistance[19]. Furthermore, the view that the suspect is “in a vulnerable position”[20] and therefore merits extra protections, fails to be as strong as it may once have been because of this assistance.

 

Dennis argues persuasively that in allowing the suspect to remain silent and not putting pressure on him to answer we are prioritising the interests of guilty suspects over the interests of victims[21]. Recognising this, Glover argues that the Scottish criminal justice system should not give suspects “an early advantage in obstructing the pursuit of the truth”[22]. The entire justice system faces the prospect of being considered frail if this is to be the case.

 

On the other hand, it can be argued that by not allowing adverse inferences and therefore not putting suspects in a position where they may feel their only option is to give false information, we can save valuable police resources. Again, this argument can be rejected. We should be able to rely on trained police members to understand when a suspect is providing misleading information. As well as this, although possibly a naive and idealistic view, we should not be compromising the attainment of justice for the sake of saving money.

 

Overall, considering Roberts and Zuckerman’s intrinsic rationales for the privilege against self-incrimination, it cannot be said that adverse inferences should not be introduced. We are at risk of presenting too many protections to the guilty and, considering this, losing focus of the true goal of the process- justice.

 

 

 

2. Conceptualist Rationales

The key conceptualist rationale for the right to silence identified by Roberts and Zuckerman stems from the presumption of innocence[23] and the idea that allowing adverse inferences would fall foul of the presumption as outlined in Article 6 of the ECHR[24].

 

There is an argument that by allowing inferences to be drawn from silence, we are effectively suggesting the suspect is guilty and needs to prove their innocence and we are lessening the burden on the prosecution to (i) make their case against the accused, and (ii) to prove guilt beyond reasonable doubt[25]. As there is no requirement for the suspect to prove their innocence in any way,[26] it can be said that the by allowing adverse inferences to be drawn from their silence, the suspect is somewhat aiding the prosecution’s case by providing an extra source of evidence.

 

One the one hand, it can be seen that this argument may have merits. The state has far greater resources and expertise at its disposal to prove the guilt of the suspect without requiring any contribution from him[27]. Furthermore, Redmayne argues that a suspect who chooses to remain silent “should not be treated with suspicion without good reason”[28].

 

Again, the arguments provided here can be rebutted. It is important to understand that the burden of proof the state must discharge would remain unaffected by any changes to the law to allow adverse inferences to be made[29]. Considering Redmayne’s argument, the mere fact that a person is a suspect suggests this person should be treated with suspicion. Staying silent does not save a suspect from such scepticism and the introduction of adverse inferences would not make any dramatic changes to this view. 

 

As well as this, the ECtHR have themselves said that allowing adverse inferences to be drawn is not in itself incompatible with the requirements of a fair trial[30]. Considering this is the current position of the court with the most expertise on Convention issues, surely if done correctly, the introduction of adverse inferences cannot be denied on this ground alone.

 

Therefore, when we consider the arguments above, it must be said that the idea that the introduction of adverse inferences would interfere with a suspect’s right to be presumed innocent is not strong.

 

3. Instrumental Rationales

Roberts and Zuckerman’s instrumental rationales for the right to silence focus on the prevention of wrongful conviction[31].

 

It is argued that “the wrongful conviction of the innocent is considered a species of moral harm so severe as to warrant special measures to prevent its occurrence”[32] and that by not allowing adverse inferences to be drawn and effectively not compelling suspects to give information, miscarriages of justice can be prevented[33]. A case can be made to say that by introducing adverse inferences, a suspect is likely to give information which False confessions have been concluded to be a cause of wrongful conviction[34].

 

However, when we consider the protections already afforded to suspects in the Scottish criminal justice system to prevent wrongful conviction, it is unlikely that the introduction of adverse inferences would result in a sudden increase of wrongful convictions[35].

 

One such requirement is corroboration. This means that adverse inferences from silence alone will not be sufficient for a conviction; there must be more evidence beyond simple silence.  The function of the adverse inferences would not be so strong that miscarriages of justice would become more common through its introduction.

 

Another protection is the right to legal assistance. Although it may be the case that weak and vulnerable suspects may give up this right[36] and may therefore be more susceptible to the pressured environment of police interview stage, this will not prove to be the reality for most suspects.

 

Furthermore, “the most severe forms of police oppression have of course always been subject to direct legal sanction”[37] in the criminal law. Therefore, although the introduction of adverse inferences may increase the pressure on suspects to give information, there can still be no use of coercion or cruelty on the part of the police to obtain such information.

 

 

 

 

Carloway’s complexity argument

In rejecting the introduction of adverse inferences into the law of Scotland, Lord Carloway highlighted the complexity that would come with such a move as an argument for the status quo[38].

There is an argument that a change in the law would make the legal position “difficult for suspects to understand.”[39] Alongside this, as is often the case, we risk making the law even more difficult for the average person who may serve on a jury, who may lack an in-depth knowledge of the law, to understand.

 

These arguments, however, can also be rejected. Insofar as we are considering the impact of the change on the understanding of suspects, this “might be countered by legal assistance”[40] Furthermore, the law is complex[41]. Any provisions on adverse inferences being permissible will not be One way in which this may be countered is through clear and understandable jury directions or even by limiting the use of adverse inferences to judges alone.

 

 

Do adverse inferences work?

 

Naturally, the Scottish criminal justice system varies from those in other jurisdictions. However, if we are to consider fully the question of whether adverse inferences should be introduced in Scotland, we must look to other jurisdictions to understand if they are effective. Two legal systems will be considered to gain an insight into the impact of adverse inferences- the English and Welsh system and the Northern Irish system.

 

Adverse inferences from silence are permissible in the English and Welsh criminal justice system[42]. Here is it open to the court or jury to draw any inferences, which they deem to be proper from the silence[43]. In their study on the effects of the change in law and the impacts of this on conviction rates in England, Bucke, Street and Brown[44] found that since the introduction of adverse inferences, there was no substantial change in conviction rate[45]. The current position in Northern Ireland is such that adverse inferences may be drawn in certain circumstances[46].  However, unlike in England, this responsibility usually lies with the judge rather than jury[47].

In research undertaken as to the impact of these provisions, Jackson, Wolfe and Quinn found that more suspects were talking to the police[48] and in at least one case, the inference made the difference between acquittal and conviction[49].

 

If we are to consider these findings, alongside the assumption that one of the main reasons for introducing adverse inferences is to increase convictions, it must be said that the desired effect has clearly not been achieved. As well as this, the consensus among police officers seemed to be that although more suspects were talking, there was an increase in false accounts being given by suspects, which in turn led to resources being wasted in ascertaining the claims’ value[50].

 

Looking at this, it is clear there has not been much of a negative impact on the rights of suspects and the only real problem may be a waste of police resources in investigating false claims. However, this may be a worthwhile expense as the inferences do lead to more communication at least.

 

 

 

 

Conclusion

In conclusion, the law of Scotland should be changed to allow the introduction of adverse inferences. The law, as it currently stands, is very favourable from the view of a suspect and this is something that needs to be amended while remaining as fair as possible and the introduction of adverse inferences is one of the most effective ways to achieve this. As well as this, the introduction is unlikely to interfere with any suspect’s human rights any more than the (legitimate) means that are currently in operation.

 

One issue that may be considered further however is what form the Scottish law should take if the law was to be amended. The key issue in answering this question would be trying to strike the best balance for the suspect and the prosecutor. One way to do this, for example, may be allowing only judges to draw inferences. This will go a long way to ensuring juries are not erring due to the possible complexities which will undoubtedly come alongside any law reform.

 

[1] Criminal Procedure (Scotland) Act 1995 (CP(S)A) s.14(9) although certain facts e.g. name, address and date of birth must be given.

[2] Robertson v Maxwell (1951) JC 11 and more recently Larkin v HM Advocate 2005 SLT 1087 and Dick v HM Advocate [2013] HCJAC 5.

[3] M.Redmayne, “Rethinking the privilege against self-incrimination” (2007) 27 OJLS 209.

[4] Ibid.

[5] CP(S)A 1995 s.14(9).

[6] Larkin v HM Advocate 2005 SLT 1087.

[7] The Carloway Review, Report and Recommendations, (2011) para 7.5.25.

[8] Article 6 protects a person’s right to a fair trial.

[9] Jean-Gustave Funke v France [1993] 1 CMLR. 897 para 44 and more recently Murray v United Kingdom (1996) 22 EHRR. 29 para 45.

[10] Criminal Justice and Public Order Act (CJPOA) 1994 s.34.

[11] J.Chalmers and F.Leverick, “Substantial and radical change: a new dawn for Scottish criminal procedure” (2012) 75 MLR 842 page 857; The Carloway Review, Report and Recommendations, (2011) para 7.5.23.

[12] P.Roberts and A.Zuckerman, Criminal Evidence (2nd edn, 2010) pages 549-563.

[13] Ibid.

[14] A state may lawfully interfere with this right, “for the prevention of disorder or crime” – Article 8(2) ECHR.

[15] D.J.Galligan, “The Right to Silence Reconsidered” 1988 CLP 69 at page 89.

[16] CP(S)A 1995, s.18

[17] K.Greenawalt, “Silence as a Moral and Constitutional Right” (1981) 23 William and Mary Law Review 15.

[18] This is of course, contrary to the presumption of innocence protected by Article 6(2) of the ECHR.

[19] Cadder v HM Advocate [2010] UKSC 43 and CP(S)A 1995 s.15A.

[20] The Carloway Review, Responses to the Consultation Document, (2011) page 29.

[21] I.Dennis, “International protection, human right or functional necessity? Reassessing the privilege against self-incrimination” (1995) 54 Cambridge Law Journal 342 page 359.

[22] P.B.Glover, “Proceed with Caution(s): A Critique of the Carloway Review’s Rejection of Statutory Adverse Inference Provisions in Scottish Criminal Law” (2013) page 16.

[23] P.Roberts and A.Zuckerman, Criminal Evidence (2nd edn, 2010) pages 549-563.

[24] ECHR Article 6(2).

[25] P.Roberts and A.Zuckerman, Criminal Evidence (2nd edn, 2010) page 554.

[26] The Carloway Review, Report and Recommendations, (2011) para 7.5.1.

[27] I.Dennis, “International protection, human right or functional necessity? Reassessing the privilege against self-incrimination” (1995) 54 Cambridge Law Journal 342 page 354.

[28] M.Redmayne, “Rethinking the privilege against self-incrimination” (2007) 27 OJLS 209 page 219.

[29] P.Roberts and A.Zuckerman, Criminal Evidence (2nd edn, 2010) pages 554-

555; I Dennis, “International protection, human right or functional necessity? Reassessing the privilege against self-incrimination” (1995) 54 Cambridge Law Journal 342 page 355.

[30] Adetoro v United Kingdom 20 April 2010 (no 46834/06) at para 47–49.

[31] P.Roberts and A.Zuckerman, Criminal Evidence (2nd edn, 2010) pages 549-563.

[32] I.Dennis, “International protection, human right or functional necessity? Reassessing the privilege against self-incrimination” (1995) 54 Cambridge Law Journal 342 page 348.

[33] M.Redmayne, “Rethinking the privilege against self-incrimination” (2007) 27 OJLS 209 page 219.

[34] J.Chalmers, F.Leverick and A.Shaw (eds), Post-Corroboration Safeguards Review: Report of the Academic Expert Group (2014), page 42.

[35] J.Chalmers and F.Leverick, “Substantial and radical change: a new dawn for Scottish criminal procedure” (2012) 75 MLR 842 page 858.

[36] I.Dennis, “International protection, human right or functional necessity? Reassessing the privilege against self-incrimination” (1995) 54 Cambridge Law Journal 342 page 350; M.Redmayne, “Rethinking the privilege against self-incrimination” (2007) 27 OJLS 209 page 220.

[37] I.Dennis, “International protection, human right or functional necessity? Reassessing the privilege against self-incrimination” (1995) 54 Cambridge Law Journal 342 page 350.

[38] The Carloway Review, Report and Recommendations, (2011) para 7.5.26.

[39] S.Fenner, G.Gudjonsson and I.Clare “Understanding of the Current Police Caution (England and Wales) Among Suspects in Police Detention” (2002) 12 Journal of Community and Applied Social Psychology page 83.

[40] J.Chalmers and F.Leverick, “Substantial and radical change: a new dawn for Scottish criminal procedure” (2012) 75 MLR 842 at page 859.

[41] P.B.Glover, “Proceed with Caution(s): A Critique of the Carloway Review’s Rejection of Statutory Adverse Inference Provisions in Scottish Criminal Law” (2013) page 22.

[42] CJPOA 1994 s.34-35.

[43] Ibid. s.35(3).

[44] T.Bucke, R.Street and D.Brown, “The Right of Silence: The Impact of the Criminal Justice and Public Order Act 1994” (Home Office Research Study 199, 2000)

[45] Ibid. pages 66-67.

[46] Criminal Evidence (Northern Ireland) Order 1988 Article 3.

[47] P.B.Glover, “Proceed with Caution(s): A Critique of the Carloway Review’s Rejection of Statutory Adverse Inference Provisions in Scottish Criminal Law” (2013) page 9.

[48] J.Jackson, M.Wolfe & K.Quinn, Legislating Against Silence: The Northern Ireland Experience (2002) page 127.

[49] Ibid, page 68-69 and M.Redmayne, “English Warnings” Cardozo Law Review Vol 30:3:2008 page 1083.

[50] Ibid. page 35. 

In Memory of the UK’s Membership of the European Union: 1973 - ?

February 17, 2017

In light of the UK’s vote to leave the European Union, this article by Saif Gilani (2nd year LLB) analyses the timeframe needed for the UK to withdraw from the EU, considering the key legal and political obstacles which must first be overcome.

“In Memory of the UK’s Membership of the European Union: 1973 - ?”

Article 50(3) of the Treaty on European Union (TEU) states that “the legal consequence of a withdrawal from the EU is the end of the application of the Treaties and the Protocols thereto in the state concerned from that point on”. As such, following the Brexit vote on June 23rd 2016, many media outlets have prematurely earmarked April 1st 2019 as the day when the UK will free itself from the influence of the EU. Nevertheless, a plethora of constitutional issues have surfaced which could have the effect of prolonging this process. By considering the most pertinent of legal and political obstacles to Brexit, existing at a domestic, devolved and supranational level, this essay will assess whether a longer timeframe is needed for the UK to duly leave the EU. In such a context, one must consider the most effective way for the UK to trigger its withdrawal. Thereafter, the negotiation process with regards to the divorce between the UK and EU will be analysed.

A unilateral withdrawal from the EU, by repealing the European Communities Act 1972, which currently legitimises the UK’s membership, would be the quickest route to termination. This is possible by virtue of the principle of Parliamentary sovereignty: as stated by Dicey, the UK Parliament can make or unmake any law it deems necessary.[1] Furthermore, it has been stated by Frank Vibert and Gunnar Beck that repeal of the 1972 Act can be justified under international law, specifically Article 65(2) of the Vienna Convention on the Law of Treaties of the UN (VCLT): “unilateral withdrawal from an international treaty may occur where there has been a fundamental change in circumstances, typically requiring just a three month withdrawal notice”.[2] Therefore, Vibert and Beck claim that the vote to leave the EU satisfies the “fundamental change” requirement. However, this conclusion is misplaced. The term “fundamental change” is applicable only to exceptional cases.[3] Since other, less severe, withdrawal mechanisms exist, surely Brexit cannot be considered as “exceptional.” Notwithstanding Parliamentary sovereignty upon which Parliament may ignore such legal basis, unilateral withdrawal would be calamitous, for leaving on such hostile terms would prevent the UK from negotiating a transition agreement with the EU. Furthermore, it may jeopardise any future trade negotiations. In the absence of such agreements, EU law which has direct effect would immediately lapse, creating a temporary legal vacuum.[4] Therefore, while this would be the quickest route, it would not be in the best interests of the UK.

Instead, Article 50 of the TEU details the preferred route for the UK to withdraw. As opposed to the Vienna Treaty, reliance upon Article 50 involves procedural, rather than substantive, requirements. Upon triggering Article 50, the Member State has an obligation to notify the EU of its intention to withdraw and also compels the EU to take steps to negotiate a withdrawal agreement. With the opportunity to negotiate with the EU, Article 50 can be considered a more amicable withdrawal mechanism. As a result, it is in the UK’s interest to follow this route, despite the fact that it will take substantially longer than a unilateral withdrawal. Therefore, analysing the timeline for Brexit warrants a deconstruction of the Article 50 provisions.

The first point to consider is that a decision to withdraw must accord with the UK’s “own constitutional requirements”.[5] Considering that the result of the Brexit referendum is only advisory, a formal decision to withdraw from the EU has not yet been taken.[6] Nevertheless, there is a political obligation to give effect to the electorate’s decision. Consequently, recent concern has not been whether the decision must be taken, but whether the onus lies with Parliament or the Executive to initiate such proceedings. Indeed, this was the subject of the Supreme Court case, R (Miller) v Secretary of State for Exiting the European Union.[7]

In this case, the Government asserted that, in order to follow the UK’s constitutional requirements, the Executive must take the formal decision to withdraw. Thus, it was argued that the Royal Prerogative must be used as the vehicle for initiating the withdrawal proceedings.[8] This argument was based on the fact that it is the Executive’s prerogative power to provide for the entry into and withdrawal from international treaties.[9] The opposing (and successful) case centred upon the notion that the 1972 Act confers EU law rights upon individuals.[10] Since prerogative powers cannot be used when the effect is to remove rights, it was argued that Parliament must take the decision to leave the EU.

Is the judgement in favour of the claimant correct? Of clear contention is the issue of Parliament’s intention when enacting the 1972 Act and whether exercise of the Royal Prerogative would contradict such intention. On one hand, the use of the prerogative to withdraw from the Treaty would have the effect of ending the UK’s membership. On the other hand, it was accepted by the court that the 1972 Act is intended to enable membership of the EU. Therefore, it could be argued that the exercise of the prerogative power would frustrate the will of Parliament, as was externalised through the provisions of the 1972 Act. This suggests a conflict between the purposes of these sources of law, where using the prerogative would prevent the effective operation of the 1972 Act. In such instances of a conflict, it is a well-established rule that the Royal Prerogative is available only in cases not covered by statute.[11] Therefore, in order to preserve Parliamentary sovereignty, ensuring that Parliament’s intention is not overridden by the Executive, it was successfully argued that withdrawal from the EU requires an Act of Parliament to repeal the 1972 Act.[12] This suggests that Parliament must trigger the decision to withdraw from the EU.

It can, however, be said that this misinterprets Parliament’s intention in enacting the 1972 Act. As stated in the dissenting judgement by Lord Reed, there is actually no conflict between the prerogative power and Parliament’s intention. Lord Reed stated that the Act “simply creates a scheme under which the effect given to EU law in domestic law reflects the UK’s international obligations under the Treaties, whatever they may be”.[13] In other words, interpreting the Act literally, Parliament’s intention in enacting the legislation was to ensure that “from time to time” the UK could discharge its obligations as afforded by the relevant EU Treaties.[14] As a result, using the prerogative power to withdraw from the EU would not contradict this purpose as there would simply be no relevant EU Treaty by which the UK must abide. As per the wording of the statute, the absence of any applicable Treaty means that no obligations exist which the UK must discharge. This shows how there is in fact no conflict between the prerogative power and Parliamentary will: withdrawal from the EU, as a result of the prerogative, is separate to Parliament’s intention of conferring EU rights to individuals so long as the UK is a member of the EU. As such, this provides a rationale to justify the use of the prerogative power to trigger Article 50.

What about the contention by the Supreme Court that EU law has become a direct source of UK law, so utilising a prerogative that relates to international sources of law is not even applicable? With regards to this conclusion, Lord Reed provides an interesting dissent, stating that EU law is actually a distinct source of law, applicable to the UK as a separate body of law by virtue of the 1972 Act. Therefore, it maintains its status as a foreign treaty for which the prerogative is still applicable.

Both judgements are contingent upon the respective approach taken as regards to Parliament’s intention over the 1972 Act. Since the Supreme Court rejected the appeal, the issue is concluded as a matter of law. However, recent circumstances suggest that a basic Bill will be put forward and a three-line whip will be imposed on MPs to force them to pass the Bill, with few amendments.[15] If, indeed, the Bill is subject to little Parliamentary scrutiny, then the Supreme Court’s judgement, although legally required, will be considered unnecessarily cumbersome and time-consuming. There is strong political force to suggest that this should not be the case. The majority in the Supreme Court used the following analogy in their judgement, which can also be used to justify political intervention: “To adapt Lord Pannick’s metaphor, the bullet will have left the gun before Parliament has accorded the necessary leave for the trigger to be pulled.”[16] In the UK’s parliamentary democracy, it would be undemocratic for the “trigger” to be pulled without any meaningful Parliamentary influence on such a monumental constitutional issue. As a result, it is in the interest of the country to use such Parliamentary time to agree a mandate for the Government’s negotiations within the EU.[17] While potentially time-consuming, it will ensure that the interests of the whole country are represented.

Similarly, much debate has been made as to whether the devolved legislatures, particularly the Scottish Parliament, ought to have an influence on proceedings.[18] While s.29(7) of the Scotland Act 1998 recognised the retention of the UK Parliament’s right to legislate with regards to devolved matters, it was envisaged in the Devolution Guidance Note 10 that consent (in the form of a Legislative Consent Motion) ought to be required by the Scottish Parliament in such circumstances concerning legislative competence (referred to as the “Sewel Convention”). Indeed, leaving the EU would likely require an amendment of s.29(2)(d) of the Scotland Act 1998.[19]As a matter of legal necessity, does the Westminster require the approval by Holyrood before triggering Article 50?

This was the second point of contention in Miller, with the Supreme Court exploring the issue in two stages: having regard to s.2 of the Scotland Act 2016, is the Convention justiciable? If so, does the legislation, indeed, fall within the Sewel Convention? It was submitted by the Lord Advocate that the wording of “constitutional requirements” encompasses laws and also conventions, thus warranting the consent of the Scottish Parliament. However, the judges unanimously asserted that the Convention is not justiciable, so the second question was not explored. The lack of justiciability was concluded by making reference to the wording of s.2, stating that “the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.” The lack of authority in the phrase “not normally,” suggests that s.2 puts Sewel into statute as a convention,[20] a controversial point which has since been afforded judicial recognition in Miller. Concluding that Sewel remains a convention rather than a legal provision, the judges affirmed the non-justiciability with regards to conventions. This confirms the notion that while the courts may recognise the operation of conventions in deciding legal questions, they cannot enforce them as a matter of law. Instead, this is a matter for Parliament.

However, while the courts cannot enforce the Convention, there still exists strong normative reasons to gain consent by the devolved bodies, particularly Holyrood. So far, the operation of Sewel can be considered a success. For example, a Legislative Consent motion was deemed necessary prior to the enactment of the recent Scotland Act 2016, a statute of significant constitutional concern. The issue, therefore, is whether the circumstances surrounding Brexit warrant a deviation from such a long-standing political practice that recognises the need to afford a degree of self-governance to the devolved institution. Theresa May is of such a view, stating that “Because we voted in the referendum as one United Kingdom, we will negotiate as one United Kingdom, and we will leave the European Union as one United Kingdom”.[21] This reasoning is based on the premise that derogation from Sewel will serve to protect harmonisation within the UK. Nevertheless, following on from the proposal mentioned with regards to the UK Parliament, it is desirable that Holyrood also gets a vote on triggering Article 50. In doing so, MSPs will have the opportunity to have legislative input and raise possible concerns about the impact of Brexit on devolved issues (for example, education). But again, this is entirely contingent upon a detailed Bill being put forward by the Government.

Therefore, from a legal perspective, one need not expect any further delays in this regard to triggering Article 50. However, to ensure an effective Brexit, extensive and effective consultation should be sought by the devolved bodies with regards to the negotiation process, irrespective of any delays this may cause. This will ensure that the views of the UK, at a domestic and a devolved level, will be duly considered. 

 

However, it has been said that the “Supreme Court’s judgment, far from being the beginning of the end, is — at most — merely the end of the beginning.”[22] Having established the most effective method of initiating proceedings, an analysis of the timeline of Brexit would be incomplete without examining further difficulties which could arise after triggering Article 50.

While consultation with the devolved bodies should be sought, it is not a procedural requirement as a matter of law. Instead, the first requirement is that once the UK is satisfied that its constitutional pre-requisites for triggering Article 50 have been met, Article 50 states that notification must be made to the European Council of its intention to withdraw. Thereafter, in the absence of the UK, the European Council will agree negotiation guidelines so as to provide itself with a clear mandate. Once agreed, the European Commission will negotiate on behalf of the EU with the UK, seeking to come to an agreement on its divorce. Lastly, the European Council must vote by a super-qualified majority (72% of participating states) plus a simple majority by the European Parliament and the Council of the European Union. This presents the possibility of a Member State vetoing a proposed deal (but not the withdrawal itself). While the negotiation process can be extended beyond the two year deadline, subject to a unanimous agreement by the EU, this is by no means a guarantee. This suggests that the UK may be without a transition agreement in place by the end of negotiations. Evidently, contrary to that of triggering Article 50, the procedural expectations are relatively clear - however, they are extensive.

Such proceedings may in fact serve as the largest obstacle to the UK Government. Indeed, the easier the negotiations, the quicker the withdrawal process. However, the primitive nature of these provisions, as the UK is the first member state to consider triggering article 50, has created uncertainty. This is linked to the difficulty in reconciling the interests of the UK with that of the EU. On the one hand, it is in the UK’s economic interest to maintain free movement of goods, with a report stating that it increases GDP by an additional 4 per cent.[23] On the other hand, comments from the Maltese President, Joseph Musket, have made it clear that the UK will not be permitted to cherry-pick aspects of EU membership, such as refusal to comply with the principle of the free movement of persons.[24] Indeed, this reflects the difficulties which will arise during the discussion process. Therefore, while the negotiation process presents few legal obstacles to proceedings, timetabling the UK’s formal exit is made difficult by virtue of the politicised nature of negotiations. The prospect of a political stalemate will most probably delay the UK’s withdrawal.

Thus, it is not surprising that experts have estimated a ten year timescale for the UK to eventually free itself from the influence of the EU and assert itself as a fully independent nation. Compliance with the legal requirements is not enough; to make Brexit a success, in spite of the extensive delays that may be experienced, much emphasis should be put on overcoming the political obstacles to Brexit. With regards to the issues arising in the UK Parliament, “Vote Leave, take back control[25] was the slogan used to persuade the UK public to vote for Brexit. It is thus ironic that even after a vote which was supposed to return power to the UK Parliament, questions still arise as to the sovereignty of the UK’s legislature. If Parliamentary sovereignty is to be politically respected, then MPs should get a meaningful say on the negotiations between the UK and the EU. Should Theresa May secure a simple majority in the UK Parliament and devolved bodies, she will then need to persuade 72% of participating EU states to accept her draft deal, a very bureaucratic exercise.[26] With all the inherent complexities, we can expect the Brexit process to run beyond April 1st 2019, most probably even into the next Parliamentary session.

 

 

 

 

 

[1] A.V.Dicey, The Law of the Constitution, 1st edn. (London, 1885), pp.39-40

[3] Case concerning the Gabčíkovo Nagymaros Project (Hungary/Slovakia) (Judgment) [1997] ICJ Rep 7 para 104

[4] Article 288 Treaty of the Function of the EU

[5] Art.50(1) TEU

[8] These powers encompass the “residue of powers which remain vested in the Crown”. (Miller, at para. 47)

[9] Miller, at para. 55

[10] s.2(1) 1972 Act – i.e. the rights of UK citizens to benefit from employment protection such as the Working Time Directive

[12] Miller, at para. 43

[13] Miller, at para. 185

[14] European Communities Act 1972 s.2(1)

[16] Miller, para 94

[17] For example, to debate issues such as European Economic Area membership.

[19] An Act of the Scottish Parliament must be compatible with EU law. Although legally possible, maintaining such provision would be redundant.

[20] Devolution (Further Powers) Committee, New Powers for Scotland, para.58

[22] M. Elliott, Available at https://publiclawforeveryone.com/2017/01/25/analysis-the-supreme-courts-judgment-in-miller/

[24] Malta currently holds the presidency of the Council of European Union

[25] See http://www.voteleavetakecontrol.org/

[26] Art.50(4) TEU

 

Family Feudalism

February 17, 2017

In this article, Paul Sanders (4th year LLB ) examines the legal issue in McNaughton's Executor v Major and places its outcome in the wider context of the Scottish Parliament's abolition of feudal land tenure.

Family Feudalism

McNaughton's Executor v Major[1] was a 2016 Outer House case involving the acquisition of land by way of positive prescription prior to the abolition of feudalism, in which the court found that the disposition that conveyed the feudal superiority to the owner of the adjacent land also purported to convey the feudal dominium utile. This allowed prescription to take place under the Prescription and Limitation (Scotland) Act 1973 s1(1) and blocked a competing claim from the residents of the land. The case dealt extensively with determining the relevant period of prescription, and the decision was clear: the pursuer’s late father received an adequate disposition and, as the disputed land residents’ right to occupy it was accessory to the owner’s real right of feudal superiority, there was civil possession leading to positive prescription. As this occurred before the abolition of the system of feudal land tenure, the pursuer’s father acquired the dominium utile and the feudal superiority, and therefore acquired full ownership. The application of prescription in this way frustrates Parliament’s motive in legislating on feudal abolition. Parliament’s intention was to transfer ownership of the land to the vassal with the dominium utile and this would have been the person who inherited this right after its last conveyance in the 19th century, had the owner not acquired this right by prescription. The court skirted this by assuming that nobody still held the right. However, the residents of the land were in a quasi-feudal relationship with the prescriptive owner, as they had the right to use and develop the land and building under his legal superiority. They did not acquire ownership either. This shows a tension between the government’s policy on feudal abolition.

 

The Facts

 

The pursuer in McNaughton’s Executor was the son and executor of Mr. McNaughton. Mr. McNaughton lived in Kilmarnock in one of two semi-detached cottages that shared a yard. A disposition, written by Metropolitan Pensions Association Limited in 1961 and recorded in the General Register of Sasines in 1987, conveyed the feudal superiority for the land to him. The last recorded conveyance of the feudal dominium utile was in 1868 to John Arnott. Mr. McNaughton’s mother lived in the adjacent cottage until her death in 1991. Over a year later, the defenders, Mr. and Mrs. Major, moved into the adjacent cottage through an arrangement with Mr. McNaughton’s wife but with his permission and in exchange for a weekly payment. He viewed the relationship as a lease but his wife told the tenants that they, the McNaughtons, could not rent it out as they did not own it, and that the payment was just to insure the property. In October 2006, the defenders’ neighbours and relatives, Mr. and Mrs. Burns, conveyed the cottage to them through an a non domino disposition, following a solicitor’s advice, presumably with the intention of establishing prescription. The pursuer sought reduction of this a non domino disposition as his father had already acquired ownership, as well as a decree requiring the defenders to vacate the cottage. This is the action that brought the parties before the Court of Session.

 

The Legal Issue

 

The legal issue at hand involved the relevant period of prescription. The Prescription and Limitation (Scotland) Act 1973 s1(1), as in force at the time following amendment by the Abolition of Feudal Tenure etc. (Scotland) Act 2000 Sch 12(1) para. 33(2), provides:

 

1 Validity of right

(1) If land has been possessed by any person, or by any person and his successors, for a continuous period of ten years openly, peaceably and without any judicial interruption and the possession was founded on, and followed–

(a) the recording of a deed which is sufficient in respect of its terms to constitute in favour of that person a real right in–

(i) that land; or

(ii) land of a description habile to include that land; or

(b) registration of a real right in that land, in favour of that person, in the Land Register of Scotland, subject to an exclusion of indemnity under section 12(2) of the Land Registration (Scotland) Act 1979 (c.33),

then, as from the expiry of that period, the real right so far as relating to that land shall be exempt from challenge.

 

The pursuer’s father had ex facie valid title, so if he remained in possession of the disputed cottage for ten years prior to the abolition of feudal tenure on the 28th November 2004 under ss1-2 of the aforementioned 2000 Act then he would have acquired title to the land. If not, the pursuer would have no title to sue the defenders.

 

The pursuer acknowledged that Mr. McNaughton could not have had actual possession of the area for ten continuous years, but submitted that the relationship between Mr. McNaughton and the defenders constituted a lease, as the weekly payments were far higher than a standard insurance premium, and although there was nothing in writing, a lease of less than one year can be established verbally and continue by tacit relocation. As s15(1) of the 1973 Act provides that “possession” includes civil possession[2], Mr. McNaughton can be said to have had continuous possession of the area for ten years: either from the recording of the disposition conveying the superiority in 1987, with possession constituted by his regular visits to his mother who lived there; or, as a “fall-back”[3] position, from the defenders taking occupation of the property in 1992. This would be enough to establish prescription.

 

The defenders submitted that Mr. McNaughton’s mother’s possession could not be considered, and neither could the immediate period of vacancy following her death, as any visits by the pursuer’s father in this period “cannot be considered relevant to the alteration of the nature of the possession of heritable property”.[4] The relevant ten years is from the date in 1992 when the defenders moved in, but it was submitted that the characteristics of their residence were inconsistent with a lease, and due to the lack of consensus in idem, one did not exist. This means that Mr. McNaughton had no civil possession so did not acquire ownership and prescription didn’t occur.

 

Lord Jones was not totally convinced by either argument, considering the lease issue “an unhelpful and ultimately unnecessary diversion”.[5] He instead focused on the root of the defenders’ residence. Although it was not a lease, it was a monthly payment in exchange for permission to stay. They needed “the McNaughtons' consent to move in…[T]hey were not free simply to walk in and start living there”.[6] Regardless of the formal structure of the arrangement, their right was “derived from”[7] Mr. McNaughton’s right, so allowing them to live there was an act of possession exercised by him.

 

McNaughton’s Executor and Land Reform

 

The judgment is clearly reasoned. At the time of the arguments, it was less than ten years since the defenders received the a non domino disposition, so they had no claim. The pursuer as executor had a stronger claim. As the wording of the disposition purported to convey all the relevant rights to the land, and nobody was exercising the dominium utile, then after ten years of civil possession Mr. McNaughton acquired both feudal rights over the land, the dominium utile becoming ownership upon feudal abolition, which occurred several years later. However, as feudal abolition was not and could not act retrospectively, the court had to apply the law as it stood to determine this case, thereby frustrating the intentions of abolishing feudalism in the first place.

 

Feudalism was the dominant system of land tenure in Scotland until its abolition in 2004 “[a]fter 1,000 years of life”.[8] It was constituted by a chain of hierarchical rights. At the very top was the owner of all the land in the nation – notionally God, but in practice the reigning monarch as God’s representative. Their right in the land was called the dominium eminems. The land was subdivided, with each individual area being controlled by the person with the dominium directum. They were able to again subdivide the land. This subdivision occurred down to the lowest level, with the person at the foot of the hierarchy possessing the dominium utile, or the right to actually occupy and use the land. Each of these persons are vassals. In return, they paid an annual feuduty to their superior, the person above them in the chain.

 

The Abolition of Feudal Tenure etc. (Scotland) Act 2000 was one of the first Acts passed by the Scottish Parliament after the Scotland Act 1998 created the devolved Parliament at Holyrood, indicating the importance of feudal abolition to the new legislature. The Bill was introduced “to abolish the feudal system of land tenure in Scotland and to replace it with a system of simple ownership which is modern and uncluttered”[9] by abolishing feudal superiorities and transferring ownership to the holder of the dominium utile. This speaks to Parliament’s intentions of favouring the actual users of the land, and not the wealthier, smaller, group of superiors. This commitment to diversifying those who own land in Scotland and empowering its actual users can be seen in other landmark Scottish statutes such as the Land Reform (Scotland) Act 2003 and the Community Empowerment (Scotland) Act 2015. As passed, s1 of the 2000 Act provided that feudalism was to be abolished from the “appointed day” (28th November 2004), and s2(1) provided that the appointed day would convert rights of dominium utile into full ownership rights.

 

The holder of the dominium utile of the disputed land in McNaughton’s Executor was John Arnott, having been conveyed the right in the 19th century. However, nobody was exercising this right when the facts of the case arose. It was perhaps unfair of Metropolitan Pensions to word the disposition of the superiority in such a way as to imply that they had the authority to convey the dominium utile as well. However, this is the legal fiction that allows positive prescription to exist. It is perhaps more unfair that Lord Jones decided that “[i]t is a reasonable inference that Mr McNaughton engaged someone, possibly the solicitors who acted for him in the conveyance, to conduct a search of the titles to the subjects, in order to discover who such owner [of the dominium utile] might be”[10]. The McNaughtons’ unusual property arrangement suggests that they did not always follow the appropriate legal procedures. There is no guarantee that Mr. McNaughton searched for the owner of this right and it should have been proved as a factual matter, although this may have been difficult due to the length of time since the potential search. It is possible that there is a person who inherited the dominium utile and they have now been deprived of their right. Although there is a potential argument that it is the responsibility of the holder of the dominium utile to protect their own rights, if this was a typical aspect of the situation it would have been noted in the judgment. This suggests that there is a greater duty on someone not to interfere with someone’s rights, than there is on someone to ensure that nobody is interfering with their rights.

 

This frustrates the Scottish government’s intention to make the user of the land the owner of the land. In a practical sense, the inheritors of Arnott’s right didn’t physically use the land despite their civil possession, but the defenders did. Their relationship with the legal superior, Mr. McNaughton, imbued them with a quasi-vassal quality. Much like a feudal vassal with a legal right, the Majors had the right to use the land and the structure, as they “were told they could do whatever they wanted to it”[11] by the McNaughtons. This would be unusual in a lease. They made a regular payment in “exchange”[12] for this, which could be construed as a more frequent feuduty, and the parties accepted that failure to pay this would be grounds for Mr. McNaughton requiring the defenders to leave, akin to feudal irritancy, or “forfeiture of a feu because of breach...such as failure to pay feuduty”.[13] The fact that the McNaughtons gave the Majors permission to use and abuse the land and structure in any way they wanted distinguishes the arrangement from a lease and elevates it to one more akin to imbuing them with the dominium utile typical of feudal land tenure.

 

This analogy, where the defenders act as true vassals of the land, illustrates that had Parliament’s intentions in abolishing feudalism been followed by the court the decision would have favoured either the actual legal holder of the dominium utile, or the defenders who filled a similar role. However, as previously stated, the court did not have many options. Mr. McNaughton did have a valid prescriptive claim. The defenders would be unable to make a prescriptive claim for another ten years after the action as it constituted “judicial interruption”, defined in s4 of the 1973 Act. The only potential alternative route for the court to take would be to demand evidence that nobody is in possession of the dominium utile, or that whoever is doesn’t wish to challenge the claim on the land, but this would require a large investigation for possibly fruitless results, and it can be presumed that a lack of legal challenge represents both things anyway.

 

This case, therefore, illustrates the tension that can arise between law and policy: while Parliament’s intention may have been to do one thing, the legal avenues open to the court in its decision-making may limit it to another. Feudal abolition was prospective when implemented by the 2000 Act. By viewing the Act in the framework of similar land reform legislation passed by the Scottish Parliament, an intention to grant full ownership rights to the actual users of the land can be extrapolated. However, Parliament could not retroactively alter the nature of real rights for several reasons, including the existence of human rights obligations. This lead to the legal situation in McNaughton’s Executor in which the court was forced to favour the feudal superior over the vassal, frustrating the policy intentions behind the abolition of feudalism in the first place.

 

In conclusion, McNaughton's Executor v Major represents a clash of Parliamentary intention with legal doctrine. At first glance, it appears to deal solely with the nature of property rights, and was resolved in a straightforward manner. Mr. McNaughton did not own the land, as he did not have the dominium utile which would have been converted into ownership upon the abolition of feudalism. However, it was on his authority that the Majors were entitled to reside in and make use of it, and although this was not in the form of a legal arrangement such as a lease, it still constituted a civil act of possession. The court’s decision in this case does not fall in line with the Scottish Parliament’s intention in abolishing feudalism in this manner, which was to assign ownership to the person actually making use of the land. If these policy intentions were applied to the facts at hand, construing the legal relationship as quasi-feudal, the Majors should have acquired ownership of the land. However, legally, Mr. McNaughton had an unassailable claim. This represents the tension between law and policy.

 

[1] [2016] CSOH 11

[2] Such as “acts of possession...carried out on the claimant's behalf by servants, employees or persons licensed by him”, Hamilton v McIntosh Donald Ltd. 1994 SLT 793 at 796

[3] McNaughton’s Executor at 31

[4] McNaughton’s Executor at 33

[5] McNaughton’s Executor at 49

[6] McNaughton’s Executor at 51

[7] McNaughton’s Executor at 56

[8] H.L. MacQueen, "Editorial: Land reform and abolition of the feudal system" (1999) 3(2) Edinburgh Law Review 127

[9] Abolition of Feudal Tenure etc. (Scotland) Bill Policy Memorandum, Session 1 (1999)

[10] McNaughton’s Executor at 50

[11] McNaughton’s Executor at 37

[12] McNaughton’s Executor at 14 and elsewhere

[13] G.L. Gretton & A.J.M. Steven, Property, Trusts and Succession, 2nd edn. (Totton, 2013) at A15, p484

 

Chilcot and the Law: An Analysis of the Report and its Application in International Law.

February 17, 2017

In this article, Cameron Kane (3rd Year LLB ),  discusses the Chilcot Inquiry's position in international law, and the procedural requirements of an international legal case against the parties involved.

Read more...

Self-Driving Cars: the legal ‘whodunit’

February 17, 2017

In this article, 4th Year LLB student and Obligations Law sub-editor Sarah Hassall,  addresses whether or not the present law is suitable for the incorporation of autonomous vehicles. It looks to the developing law in the USA concerning issues of liability and considers how these issues would be handled in Scotland.

Self-Driving Cars: the legal ‘whodunit’

We are living in the 21st century, an age where technology is taking off and achieving incredible things far beyond what we could imagine. The latest invention to (quite literally) hit the streets is the concept of cars without drivers. Google has been developing and testing these autonomous vehicles in the USA, and companies like Ford and Tesla have also begun their own developments[1]. While preliminary issues involving adjusting legislation to accommodate these new vehicles are being resolved in several states, a new wave of problems are beginning to emerge. After a series of accidents there are claims that the drivers ought to have been paying attention, however in a car which requires no human input this seems unjustifiable. This article will discuss this duty and whether or not it is necessary. It will also address product liability, the main avenue for suit in the USA. I intend to look at these issues in the States and discuss how they would be handled in Scotland.

           

The Driver’s Duty

 With the exception of cases involving contributory negligence, road traffic accidents are relatively straightforward and the wrongdoer easily identifiable. In ordinary practice the driver of the vehicle in the wrong is at fault and a case will be brought against him for the damages, with his losses being indemnified under his insurance policy. We are now, however, presented with a case in which there is no driver. There is the manufacturer, the system, and the ‘operator’ of the vehicle. The vision manufacturers and consumers alike have for autonomous vehicles is that we step into our car in the morning, push a button, and relax while our car drives us off to work.[2] However development is a process and we must ask ourselves the age-old question: are we there yet? Manufacturers and legislators don’t think so but the general public is sold. This leads to the first question to be answered: is there a duty on the driver to remain alert while operating the vehicle?

            In the wake of several accidents in the US, Tesla has made several statements about the operation of their vehicles. After an unfortunate death, the company stated that “the driver is still responsible for, and ultimately in control of, the car.”[3] This is not just a wild claim made by the company to avoid liability either; regulations in California echo this sentiment. §227.86 of the draft Regulations concerning autonomous vehicles states that “in the event that the system requires the driver to take control of the vehicle or when the vehicle is operating outside of its approved operational design domain, the driver shall be responsible for the safe operation of the vehicle.”[4] This is clear acknowledgement that the technology is not perfect and may require a manual override. Although this may be the case, Douma and Palodichuk raise the question of how far this duty extends. They note “the issue is whether the operator has a duty to continually monitor the behavior [sic] of the car, being ready to take over at any moment, or if the operator is only obligated to respond to safety alerts generated by the vehicle.”[5] Tesla have been firm in their answer. The company has stated that the system is supposed to remind drivers to keep their hands on the wheel[6] and that not having his or her hands on the wheel is contrary to the system’s terms of use.[7]

            It has been acknowledged that should the car be functioning in autonomous mode the manufacturer will be responsible for any and all traffic violations.[8] This statement relieves concerns of the burden weighing too heavily on the operator for errors, as a previous version of the regulations reversed the liability.[9] It has been well documented that the vehicles are not flawless; when discussing tests run by Google, Cohen reported that “the vehicle was reported to have difficulty identifying when objects, such as trash and light debris, are harmless, causing the vehicle to veer unnecessarily,”[10] so the revised edition provides much needed recognition that system errors cannot be attributed to the operator. This also introduces a degree of flexibility to the regulations to accommodate for these scenarios, especially when the technology is a work in progress.

It has been suggested by several American commentators that the standards for autonomous vehicles ought to be similar to those of aviation. Again, Douma and Palodichuk open the discussion by asking “is the ‘driver’ of an autonomous vehicle like the engineer of a train or pilot of an aircraft on ‘autopilot’, or is she simply a passenger?”[11] The logic behind this connection is that pilots are required to observe and maintain control over the autopilot technology, so in the event of a failure they can immediately override the system. However, the problem with this association is that the autopilot technology in planes “is not designed to adjust to a changing environment or adjust the course of the vehicles without input from a human controller,”[12] unlike an autonomous vehicle is designed to do. There is a fundamental difference in purpose between the autopilot system in a plane and those in autonomous vehicles, so it is unlikely that the application of aviation standards to operators of these vehicles would withstand challenge.

            In the UK, however, there are no specific rules dedicated to autonomous vehicles presently. This would leave them to be governed by the Road Traffic Act 1988 (RTA). There are references throughout the Act to a ‘competent and careful driver,’[13] confirming that drivers do indeed have a general duty to operate the vehicle in a reasonable manner. Furthermore, there is specific provision for requiring drivers to maintain ‘proper control’ of the vehicle.[14] It is apparent, particularly with reference to the control requirements, that this legislation is not satisfactory for autonomous vehicles since their operational requirements are fundamentally different from current road-legal cars. Nevertheless, it does not detract from the necessity and applicability of the underlying ‘reasonableness’ principle. This can be observed at the common law where the driver of an ambulance in a collision was not found negligent because she had done all that she could reasonably do in the circumstances.[15] The standard for reasonableness in autonomous vehicles is not yet clear; whether the end result is a legal requirement that the driver remain alert and able to manually control the vehicle if necessary remains to be seen. What is clear from the California regulations is that some degree of alertness ought to be maintained while operating autonomous vehicles.

 

Balancing the Duty with Expectations

Although the Californian regulations provide for a duty to remain alert, is this duty actually necessary? Is it not the case that the driver, as a consumer, should be entitled to a reasonable expectation that the system will not fail? This question can only be raised because of the circumstances under which these cars are being marketed. While it is entirely unreasonable to expect any system to be flawless, the primary selling point of the autonomous vehicles is their safety and complete control with no input from the driver. Consumers are certainly of the opinion that once autopilot is engaged, there is no longer any requirement for them to remain involved. However, as is evidenced by accidents, system failures do happen and may require operator input. In one case a man was watching a movie in his car when the system failed to distinguish a trailer crossing the road, resulting in a crash and the untimely death of the driver.[16] While this example is interesting for several reasons, it demonstrates the need for the operator to occasionally control the vehicle.

            What level of performance are consumers entitled to expect? In the US, “a consumer must have sufficient knowledge of a product’s design to develop a reasonable expectation about its performance or safety.”[17] The wording of this requirement is concerning. In his discussion of this standard, Herd suggests that the complexity of the technology may restrict the application of this standard.[18] When assessed pedantically, the average consumer will not have ‘sufficient knowledge’ of the way in which the system operates and controls the vehicle, so arguably the consumer cannot reasonably expect a certain degree of functionality. Additionally, there are concerns in America that “consumers will develop unrealistic expectations about how well the cars can maneuver [sic] and avoid accidents, causing some consumers to become over-reliant on the technology.”[19] While this is a perfectly valid concern, it should not eliminate the possibility that a consumer has developed some expectations for the car’s performance. After all, one cannot market the vehicle on the premise that it can drive autonomously and not allow for an expectation that the system will do so the majority of the time.

            In the UK, the Consumer Protection Act 1987 (CPA) s.3 sets out circumstances to take into account when considering what a person is entitled to expect. This includes “the manner in which, and purposes for which, the product has been marketed,”[20] and “what might reasonably be expected to be done with or in relation to the product.”[21] This appears to be a wider test than the American one described above, with greater appreciation for the way in which the product has been marketed and less focus on an understanding of the system. And while there is a certain expectation from consumers and producers that, as regards safety, autonomous vehicles will outperform ordinary drivers, a system failure does not automatically indicate a defect. Determining the standard of reasonableness will be challenging; it is evident from public reactions to accidents that an incredibly high burden has been placed on these vehicles, and while no system can be flawless there is some expectation that they should be.

Product Liability Problems

It is widely agreed that product liability will be the appropriate avenue for action when accidents do occur. Marchant and Lindor describe the liability requirements in the US as having three categories of defect, one of which must be found in order to proceed with a claim. The categories are: 1) a manufacturing defect; 2) failure to provide adequate warnings; and 3) a design defect.[22] Of these, the design defect requirement, otherwise known as the risk-utility test, is the centre of most discussions. This test “requires the plaintiff to demonstrate that his injuries were proximately caused by the product design and that the injuries could have been prevented by a reasonable design alternative.”[23] This places an extreme amount of pressure on the pursuer to demonstrate this connection and suggest a superior alternative. It has also been noted that this test could “make it difficult to find qualified experts with legitimate experience, and simply make it too expensive to pursue claims.”[24] Furthermore, because we are only at the beginning of a long process of development, it is unlikely at this time that there would be a ‘reasonable design alternative’ other than an ordinary car, so claims pursued under this avenue fall flat before they have properly begun.

            Frankly, the common law position in the UK is not much better. While strict liability has been introduced by the CPA, not all product liability cases will meet the requirements and so will fall to the case law. The original formulation of this test comes from Donoghue v Stevenson,[25] where the question asked, and answered in the affirmative, was “whether the manufacturer … in circumstances which prevent the distributor or the ultimate purchaser or consumer from discovering by inspection any defect, is under any legal duty to the ultimate purchaser or consumer to take reasonable care that the article is free from any defect likely to cause injury to health.”[26] This case established the concept of the duty of care and forms the basis of the entirety of modern negligence. Subsequent case law, however, has been particularly unhelpful. In the same year, it was simultaneously held that in cases of product liability the onus is on the pursuer to point to the origin of the defect,[27] and that the exact location of the defect is not necessary for a claim in negligence,[28] with neither case referencing the other. This lack of clarity potentially leaves us in much the same predicament as in the USA. With a complex system created from multiple products and by several manufacturers, it becomes almost impossible to attribute an accident to one specific part. Strict liability removes the burden of locating the defect as long as the test’s components are met. The CPA establishes that if damage is caused by a defect, the producer, or anyone holding himself to be the producer, will be strictly liable for the damage.[29] The consumer expectations test discussed above assists in defining what a defect is; arguably this part of the test will provide the most trouble for autonomous vehicles for the reasons previously discussed.

Case law following the CPA offers guidance as to what will be considered a defect. There are two cases in particular that, I believe, offer substantial difficulties for claiming defects in autonomous vehicles. The first is the case of Richardson v LRC Products,[30] which involved a defective condom leading to an unwanted pregnancy. It was held that a product is not defective if the public know there is a risk that the product might fail in its purpose. It seems trite to mention that drivers are well aware of the risk of accidents when operating any vehicle, and given that it is impossible for technology to run flawlessly it is feasible that similar arguments can be made successfully against autonomous vehicles.[31] The second case is B (a child) v McDonald’s Restaurants ltd,[32] where it was held that a product is not defective if the risk was obvious. This case, perhaps infamously, involved arguments that coffee cups were not adequate for serving hot drinks, and there was not sufficient warning that the contents were hot. These arguments were not successful because the risk of scalding from hot coffee was so obvious that a failure to warn or use an alternative cup was not necessary. Justice Field also stated that “it was up to those frequenting the restaurants to take care not to drop or knock over hot drinks.”[33] His comments suggest an underlying duty to avoid obvious risks where possible and within reason. Again, what can be taken from this case is that car accidents could be deemed such an obvious risk that the presence of an accident does not render a car defective. This is an extremely valid point, however its applicability to the autonomous system may not be so straightforward. It would be reasonable to argue that system failure is not an ‘obvious risk,’ but this argument could also be countered by suggesting that a driver remaining alert is a means of taking reasonable steps to avoid the obvious risk from manifesting.[34] The CPA seems to be much better equipped to handle the problem of autonomous vehicles; certainly, it removes the onus from Evans that would have proved itself quite problematic. Nevertheless, key issues ought to be addressed before the legislation is fully capable of addressing autonomous vehicles.

 

Conclusion

In this brief assessment of the legal climate in the USA as regards autonomous vehicles, it becomes apparent that despite their best efforts not all issues could have been contemplated in advance, the result of which is applying laws which were not made with autonomous vehicles in mind. When these vehicles become more prominent in the UK these same issues will present themselves. There are insufficiencies in UK law that ought to be addressed in anticipation of autonomous cars becoming commercially available in an effort to reduce the number of problems that will subsequently arise. Looking to states such as California provide guidance for the difficulties faced when attempting to legislate for these new vehicles. What can be seen most prominently is the underlying complexities within what appears to be a reasonably straightforward divide between the operator’s and manufacturer’s duties, and accordingly, careful consideration will be required to ensure the law is not unduly burdensome on either manufacturers or consumers.

 

 

 

 

 

 

 

 

 

[1] S. Gibbs, ‘Self-Driving Cars: Who’s Building Them and How Do They Work?’, The Guardian, 26 May 2016

[2] T. Adams, ‘Self-Driving Cars: From 2020 You Will Become a Permanent Backseat Driver’, The Guardian, 13 September 2015

[3] The Guardian, ‘Consumer Reports Urges Tesla to Disable Autopilot After Driver’s Death’, 14 July 2016

[4] Revised California Express Terms, Title 13, Division 1, Chapter 1 Article 3.7 – Autonomous Vehicles, revised 30 September 2016, §227.86 (a)(1)

[5] F. Douma and S. A. Palodichuk, ‘Criminal Liability Issues Created by Autonomous Vehicles’ 2012 Santa Clara Law Review vol.52 1157, p.1161

[6] D. Yadron and D. Tynan, ‘Tesla Driver Dies in First Fatal Crash While Using Autopilot Mode’, The Guardian, 1 July 2016

[7] J. Kiss, ‘Tesla has No Plans to Disable Autopilot Mode as Third Recent Crash is Revealed’, The Guardian, 12 July 2016

[8] Revised California Express Terms §227.86 (b)

[9] Draft California Express Terms, Title 13, Division 1, Chapter 1 Article 3.7 – Autonomous Vehicles, revised 16 December 2015, §227.84 (d)

[10] R. A. Cohen; ‘Self-Driving Technology and Autonomous Vehicles: A Whole New World for Potential Product Liability Discussion’ Defense Counsel Journal, July 2015 328, p.329

[11] Douma and Palodichuk; ‘Criminal Liability Issues’ p.1160

[12] A. Herd; ‘R2DFord: Autonomous Vehicles and the Legal Implications of Varying Liability Structures’ Faulkner Law Review vol.5 29, p.40

[13] RTA s.2A, 3ZA

[14] Ibid s.41D(a)

[15] Daborn v Bath Tramways Motor Co Ltd and Smithy [1946] 2 All ER 333

[16] S. Levin and N. Woolf; ‘Tesla Driver Killed While using Autopilot was Watching Harry Potter, Witness Says’, The Guardian, 1 July 2016

[17] Herd, ‘R2DFord’ p.38

[18] Ibid

[19] Ibid p.44

[20] CPA s.3(2)(a)

[21] Ibid s.3(2)(b)

[22] G. E. Marchant and R. A. Lindor; ‘The Coming Collision Between Autonomous Vehicles and the Liability System’ 52 Santa Clara Law Review 2012 1321, p.1323-4

[23] Herd; ‘R2DFord’ p.47-8

[24] Cohen; ‘Self-Driving Technology’ p.333

[25] Donoghue v Stevenson 1932 AC 562

[26] Ibid p.578-9

[27] Evans v Triplex Safety Glass co Ltd [1936] 1 All ER 283

[28] Grant v Australian Knitting Mills [1936] AC 85 p.101

[29] CPA s.2

[30] [2000] PIQR P164

[31] Cf. Bolton v Stone [1951] AC 851 where the risk of injury was so remote it was not sufficient to establish negligence

[32] [2002] EWHC 490 (QB)

[33] Ibid, para.60

[34] As per Daborn. See note 15

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[1] Vettas, N, ‘Developments in Vertical Agreements’, The Antitrust Bulletin (2010) 55(4), 843-874.

[2] Bork, R, The Rule of Reason and the Per Se Concept: Price Fixing and Market Division – Part II’, (1966) ,Yale L.J, 75(3), 377- 475

[3] Jones, A and Sufrin, B (2016). EU Competition Law. 6th ed. Oxford: Oxford University Press

761

[4] Comanor, W, ‘Vertical Price-Fixing, Vertical Market Restrictions, and the New Antitrust Policy’, (1985), Harvard L.R, 98(5), 983-1002

[5] Paldor, I, ‘The Vertical Restraints Paradox: Justifying the Different Legal Treatment of Price and Non- Price Vertical Restraints’, (2008) The University of Toronto L.J, 58(3), 317-353

[6] Telser, L, ‘Why Should Manufacturers want Fair Trade?, (1960), Journal of Law and Economics 3(1), 86-105

[7] Paldor, I, ‘The Vertical Restraints Paradox: Justifying the Different Legal Treatment of Price and Non- Price Vertical Restraints’

[8] Zevgolis, N, ‘Resale Price Maintenance (RPM) in European competition law: legal certainty versus economic theory?’ (2013), E.C.L.R 34(1), 25-32

[9] Marvel, H.P, ‘Resale Price Maintenance and Resale Prices: Paying to Support Competition in the Market for Heavy Trucks’(2010), Antitrust Bulletin 55(2), 79-99

[10] Leegin Creative Leather Products Inc v PSKS Inc (1997) 522 US 3

[11] Rey, P and Stiglitz, J,  ‘The Role of Exclusive Territories in Producers Competition’, (1995), RAND Journal of Economics ,26(3), 431

[12] Guidelines on vertical restraints [2010] O. J. C 130/1 , para. 106-109

[13] Consumer Focus, Consumer Focus Response to Vertical Restraints Block Exemption Regulation, (September 2009), 11-12

[14] European Commission, Green Paper on Vertical Restraints in EC Competition Policy, COM (96) 721, para. 54

[15] Kneepkens, M,’Resale Price Maintenance: Economic Call for A More Balanced Approach’, (2007) 28(12) E.C.L.R, 660-661

[16] Comanor, W, ‘Vertical Price-Fixing, Vertical Market Restrictions, and the New Antitrust Policy, Harvard Law Review’

[17] Herbert J. Hovenkamp. Economics and Federal Antitrust Law. St. Paul, MN: West Publishing Co. 1985, xvii, 592 pages (Hornbook Series Lawyer’s Edition);  Jay Palmer v BRG of Georgia (2010) 498 U.S. 46 illustrates the reality of a price increase by horizontal territorial market division

[18] B. Durand, “On the Efficiency of VTR” (thesis, Boston College, The Department of Economics, U.S.A., May 2000).

[19] Iacobucci, E, ‘The Case for Prohibiting Resale Price Maintenance’, (1995) 19(2) World Comp.L. & Econ.Rev. 71

[20] Sullivan, E.T and Jeffrey, L (2014). Understanding Antitrust and Its Economic Implications . 6th ed. Newark: Mathew Bender & Co. 227

[21] Jedličková, Barbora (2012) The law of vertical territorial and price restraints in the EU and in the USA: a critical analysis of vertical territorial and price restraints - an argument against legalisation. PhD thesis.

[22] Organisation for Economic Co-operation and Development (‘OECD’), Competition Policy and Vertical Restraints: Franchising Agreements (1994) 192–3. The EC believes that inter-brand competition is a crucial indicator of workable competition: European Commission, Green Paper on Vertical Restraints in EC Competition Policy, COM(96)721, 20

[23] European Commission, Green Paper on Vertical Restraints in EC Competition Policy, COM(96) 721, para. 70 and 78

[24] Comanor, W, ‘Vertical Arrangements and Antitrust Analysis’, (1987) 62(5), N.Y.U L. Rev. 1153

[25] Comanor, W, ‘Vertical Price-Fixing, Vertical Market Restrictions, and the New Antitrust Policy’

[26] Bennett, M et al., Resale Price Maintenance: Explaining the Controversy, and Small Steps Towards a More Nuanced Policy, (2010), MPRA Paper No. 21121, Online at www.mpra.ub.uni-muenchen.de/21121 [Accessed 20 December 2016]

[27] Treaty on the Functioning of the European Union, O.J. C 83 of 30.3.2010 

[28] Regulation 2790/99 Vertical Restraints [1999] O.J. L336/21

[29] Guidelines on Vertical Restraints [2000] OJ C291/1

[30] Jones, A and Sufrin, B (2016). EU Competition Law, 768

[31] Guidelines, para 110

[32] Commission Regulation 330/2010 on the application of Article 101(3) of the Treaty

on the Functioning of the European Union to categories of vertical agreements and

concerted practices, O.J. L 1021

[33] Brenning –Louko, M et al., ‘Vertical Agreements: New Competition Rules for the Next Decade’, (2010) 2 Competition Policy Newsletter, 15

[34] Notice on agreements of minor importance which do not appreciably restrict

competition under Article 81(1) of the Treaty establishing the European Community (“de minimis Notice”) [2001] OJ C 368/13

[35] Case 26/76 Metro – SB – Großmärkte GmbH v Commission (Metro I), [1977] ECR 1875, para.21

[36] Jones, A,. ‘Resale Price Maintenance: A Debate About Competition Policy in Europe’, (2009), European Competition Journal, 5(2), 479-514

[37] Case C -167/04 JCB Service v Commission [2006] ECR I-8935; Yamaha, IP/03/1028, 16 July 2003

[38] Bennett, M et al., Resale Price Maintenance: Explaining the Controversy, and Small Steps Towards a More Nuanced Policy, (2010)

[39] Van Doorn, F, Resale Price Maintenance in EC Competition Law: The Need for  Standardised approach, (November 6 2009). Online at www.ssrn.com/abstract=1501070 [Last Accessed 23 December 2016]

[40] Case C-74/04 P Commission v. Volkswagen AG [2006] ECR I-6585

[41] Cases 56/64, 58/64 Établissements Consten S.à.R.L. and Grundig-Verkaufs-GmbH v. Commission of the European Economic Community [1966] ECR 299

[42] Case 56/65, Société La Technique Minière v Maschinenbau Ulm GmbH [1966] ECR 235,

[43] Yamaha, IP/03/1028, 16 July 2003

[44] Case C -167/04 JCB Service v Commission [2006] ECR I-8935

[45] Guidelines, para 61

[46] IP/02/916, Commission clears B&W Loudspeakers distribution system after company deletes hard-core violations, 24 June 2002

[47] COMP/3344 Grundig, 23 September 1964

[48] Case T-13/03, Nintendo and Nintendo Europe v Commission [2009] ECR II-975

[49] Joined cases C-501/06 P, C-513/06 P and C-519/06 P GlaxoSmithKline Services Unlimited v Commission of the European Communities [2009] I-09291

[50] A similar conclusion was drawn in Case 243/83 Binon & Cie v SA Agence et Messageries de la Presse [1985] ECR 2015

[51] Jones, A and Sufrin, B (2016). EU Competition Law. 817

[52] Guidelines, para 47

[53] Maci, M, ’The assessment of RPM under EU Competition rules: certain inconsistencies based on a non-substantive analysis’, (2014) E.C.L.R, 35(3), 103-109

[54] Kyprianides, G.P, ‘Should Resale Price Maintenance be per se illegal?’, (2012), E.C.L.R, 33(8),  376-385

In Scotland, no inference may be drawn at trial from the fact that suspect refused to answer questions put to him or her by the police. Should this rule be changed?

February 17, 2017

In this article, 4th year LLB student and Commercial Law sub-editor Sarah Drummond discusses the right to silence in Scotland and whether or not we should draw adverse inferences from the exercise of this right. 

In Scotland, no inference may be drawn at trial from the fact that suspect refused to answer questions put to him or her by the police. Should this rule be changed?

 

 

The right to silence and whether adverse inferences should be drawn to indicate guilt is a contentious issue. Supporters of adverse inferences find justification in efficient fact-finding and securing conviction of the guilty. Whilst prima facie there seems to be nothing inherently wrong with this position, I believe that practically, we should not draw adverse inferences from a suspect’s right to silence in Scotland.  In order to justify this opposing position, an analysis shall be be made of the right to silence in relation to protecting the innocent from wrongful conviction. Next, the cruel choices account shall be explored, followed by a scrutiny of the justification founded on the right to privacy. An argument shall be made that connects the right to silence with the presumption of innocence and finally, an examination of the unnecessary practical complexity of inferences shall be presented.

 

In the face of police questioning, a suspect has the right to remain silent which finds justification from the overarching principle of the privilege against self-incrimination. The privilege provides that no one should be required to provide evidence that might incriminate themselves. The right to silence, in general, allows a suspect to remain silent in response to questions put to him during questioning. In Scotland, a suspect in police custody is only obliged to provide basic information regarding his identity[1] but otherwise, is under no obligation to answer any other questions put to him. Unlike in England and Wales,[2] no adverse inference can be drawn from a suspect’s failure to provide information during police questioning, that is subsequently relied on at trial.[3] This is the crux of the right to silence which is drawn into contention by various commentators.

 

Protection of Innocent Suspects from Wrongful Conviction

The privilege against self-incrimination and the right to silence both provide an instrumental justification to minimise the risk of erroneously convicting an innocent individual.[4] Which outcome is more morally repugnant: wrongly convicting the innocent or, potentially acquitting the guilty? It is clear that a balance must be struck between liberty and justice, but compromising the rights of the innocent is an indefensible solution.

 

Jeremy Bentham[5] believed that the privilege against self-incrimination only served to protect the guilty, since an innocent suspect’s primary interest would be to absolve all suspicions of guilt held against him. However, this deduction fails to recognise that there are various reasons that an innocent suspect would remain silent during questioning. Police questioning by nature is intimidating, and research identifies police pressure, susceptibility to suggestion, fear of custody and protection of other people as potential grounds for false confessions.[6]  Therefore, theoretically the privilege serves an important procedural protection that safeguards vulnerable and innocent suspects.

 

However, for a distressed suspect, it may require extraneous willpower to exercise the privilege effectively.[7] Every suspect remains at liberty to waive their privilege and submit to police questioning - which thereafter permits any statements made to be admissible at trial - and many of them do.[8] Scots law requires that suspects are offered a consultation with a solicitor before and at any time during questioning.[9] However, the right can also be waived.[10] It is inadequate that two imperative safeguards can be abandoned - encouraged by the pursuit of fact-finding - as the protection afforded to innocent and vulnerable suspects is notably diminished.[11] Roberts and Zuckermann suggest that a ‘comprehensive duty solicitor scheme’[12] could resolve this issue; attached to unrealistic economical and political costs. However, if suspects had a clearer understanding of their rights (free access to legal assistance, via telephone etc), the right to silence could be exercised more effectively, to protect the innocent from wrongful conviction.

 

Redmayne suggests that the innocent are protected elsewhere through; recording interviews, identification of vulnerable witnesses[13] and jury directions indicating why an innocent suspect might remain silent.[14] This reasoning is devoid of any recognition for what is truly at stake. If an individual does not know, or cannot access his rights, the criminal justice system lacks credibility and public confidence.

 

An alternative argument was presented by Seidmann and Stein.[15] They propose that without absolute protection under the right to silence, those who are guilty would tell exculpatory lies instead. This is counter-intuitive to fact-finding, since testimony evidence would therefore become unreliable and discredited. However, if innocent suspects told the truth, there is no indication that they would be convicted as a result. Therefore, this analysis isn’t convincing to justify the protection of the innocent.

 

Since there are various reasons that an innocent suspect may choose to remain silent it is therefore irresponsible to rely on silence as an inference of guilt. The right to silence safeguards vulnerable witnesses from wrongful admissions and self-incriminating testimonies. The awareness of the right to silence and its permissible exercise without consequences should be made more available and attainable to suspects, who would otherwise lack such knowledge, and waive their right to exercise it.

Cruel Choices

Bentham satirises the privilege against self-incrimination: “tis hard upon a man to be obliged to criminate himself.[16] For him, only the guilty face the hardship of cruel choices -  telling the truth self-incriminates, remaining silent results in adverse inferences or telling deceptive lies could evade punishment. However, this operates on the assumption that the suspect is guilty.[17] On this premise, it is therefore difficult to find a moral justification, in support of an absolute right to silence, if it only exists to save guilty suspects from a difficult decision. In Murray,[18] the court recognised this conundrum, and under the ‘fairness enshrined in Article 6 required legal assistance to be available to the accused - which alarmingly cannot be guaranteed. Roberts and Zuckermann[19] recognise that difficult choices made by ordinary witnesses can be just as challenging (such as testifying against family members). In criminal proceedings there is an expectation to “aid the process of retribution by co-operating with the criminal process[20] and it thereby follows that such choices, weighted against the moral pursuit of justice, are no less cruel than denying the combined interests of society in an efficient criminal justice system. A more convincing justification may therefore be recognised in evaluating the outcome of the ‘cruel choice’ doctrine.

 

Surely, it is preferable for suspects to exercise their absolute right to silence than actively mislead police investigations? Congruent to Stein and Seidmann’s game theory analysis, if most guilty suspects lie, the value of testimonies is diminished. Therefore, the intention of securing co-operation to a greater degree, is turned on its head, when fact-finding procedures are hindered by false accounts. A research study conducted on the system in place in England and Wales supports this position : “suspects are talking more, but more just means more untruthful accounts.[21] This is only beneficial if suspects are proven false on the evidence, or found later inconsistent with a defence raised at court, although this appears to have had no discernible impact on conviction rates.[22] The efficiency of fact-finding is undeniably compromised and therefore, one struggles to justify permitting adverse inferences it they hinder fact finding and consume time and resources without securing conviction.

 

Privacy Rights

 It is well documented by legal commentators that the privilege against self incrimination protects substantive interests in an individual’s right to privacy, in terms of its distinctive contribution to personal autonomy and personal identity.[23] Galligan compares compelling police questioning, with plugging the suspect into a painless mind-reading machine,  and condemns both.[24]  The state’s power is disproportionately great compared to the suspect,[25] therefore if privacy can operate as a distancing mechanism - between the state and the suspect - this is an important function of the right to silence that should not be under-estimated.

 

However, the scope of this justification is questionable. The investigative process, by its nature, infringes upon an individual’s right to privacy in the interests of crime prevention and effective administration of justice.[26] Article 8 of the ECHR provides an explicit exception to this extent.  Dennis[27] questions why the privilege against self-incrimination does not extend to protect an individual’s privacy from an arguably more intrusive subjection to extraction bodily samples from a suspect in custody.[28]Although we can distinguish between the probative value of hard evidence compared to silence; this in itself does not justify the disparity in treatment of bodily samples, to protecting an individual’s silence. Additionally, the extent of surveillance in our modern ‘Big-Brother’ society impeaches upon our right to privacy for the greater public interest and is not objected to in the same respect. Police questioning is central to establishing a narrative to a crime, not a suspect’s inner-most thoughts. Accordingly, for as long as the police avoid mind-reading machines, it is difficult to see how drawing adverse inferences from silence could damage a special interest in privacy that is uniquely protected by the privilege against self-incrimination.[29]

 

Presumption of Innocence

The presumption of innocence argument provides a stronger justification for why we should not draw adverse inferences. In Lord Carloway’s Review, he states:

                        it is for the prosecution to demonstrate the guilt of the

                        accused, there is no            obligation on the accused to establish

                        his/her innocence, or to take an active part in the trial

                        proceedings at all particularly in a way that might aid

                        the prosecution case[30]

An absolute right to silence isn’t required under Article 6(2) or the presumption of innocence; adverse inferences will be judged alongside the current safeguards in place for the suspect.[31] This is difficult to reconcile if the accused’s silence can form a significant part of the prosecution’s case.[32] The resources available to the state offer a particular advantage and it follows that the defence should not be compelled to assist in this fact-finding.[33] If all suspects are to be presumed innocent, until proven guilty, it is paradoxical to compel a suspect to be a source of incriminating evidence.[34] Bentham coined this ‘fair play’ sentiment as the “fox hunters reason”.[35] He parallels the concept of sportsmen giving the fox a ‘fair chance’ to escape, with that of the suspect under the law. This is particularly provocative and addresses the imbalance of power within our justice system, since the odds certainly seemed stacked against the ‘fox’ from the outset. The privilege against incrimination thereby acts as a check against the power of the state. A suspect can be arrested under ‘reasonable grounds’ and detained for up to 12 hours, with limited information regarding the suspicion against them,[36] thus it’s essential that the presumption of innocence is upheld.

 

The presumption of innocence exists to protect the accused until the prosecution adduces sufficient evidence against him, establishing guilt beyond reasonable doubt.[37] Roberts and Zuckermann emphasise that where silence is probative, the traditional standard of proof is not in fact diluted[38] but is perhaps more attainable, which is an important distinction. Given that it is for the prosecution to establish guilt in court, allowing adverse inferences to be drawn would move part of the trial out of the courtroom and into the police station.[39] The distancing mechanism[40] performed by the right to silence is an essential feature of our criminal justice system, since the prosecution should be able to establish and prove evidence independently against the accused, at trial. It logically follows that the safeguards in place maintain the accountability of the system’s fact finders, to ensure that real evidence is obtained to convict guilty individuals, rather than relying on a suspect’s absence of explanation as evidence.

 

Using Bentham’s “fox hunting terminology, in a system of well-equipped hunters, we require effective investigations that can distinguish - on the facts, beyond reasonable doubt - between a guilty fox and an innocent one; without having to ask him. The privilege against self-incrimination and presumption of innocence offer procedural protection for the individual against the power of the State; which is a fundamental principe of the criminal justice system.[41]

 

Unnecessary Complexity

The final reason for rejecting adverse inferences is the introduction of unnecessary complexity to the law.[42] Complex disclosure arrangements would be required - or the suspect may unfairly answer questions based on unsubstantiated suspicions. Therefore drawing inferences would only be permissible if the suspect had full awareness of his rights and of the evidence known against him available to the police, at all stages of investigation.[43]  This is impractical and in some instances against the interests of the case, as a guilty suspect could prepare careful rebuttals of evidence known against him. However, using England and Wales as an example, police are under no obligation to disclose such information before adverse inferences are drawn. This is precarious territory since the ECtHR permitted drawing inferences from silence ‘in situations which clearly call for an explanation[44] from the suspect. This suggests that the suspect must be made aware of the evidence against him to be Article 6 compliant. However, it is this uncertainty and complexity that is worth avoiding.

 

The second issue presented by Birch, is that the law becomes unnecessarily complicated which thereby incurs great costs to the public purse.[45] Extensive judicial directions must be delivered to ensure Article 6 compliance[46] which risks confusing the jury, undermining the accused’s fair trial and wasting judicial time.

                        “It is a matter of some anxiety that, even in the simplest

                        and most straightforward of cases to require a direction

                        of such length and detail that it seems to promote the           

                        adverse inference question to a height it does not merit[47]

This is echoed in Birch’s analysis of the value of silence. She states that there is no intrinsic weight to silence itself; and it should not be over-relied upon. Birch’s concern was that misapplication of the provisions[48] may lead to success on appeal where a conviction would otherwise be quashed - all to the futile expense of the public purse.[49]

                                   

In England, a jury can still draw an inference of guilt even if the accused was advised to remain silent by his solicitor.[50] Otherwise, reliance on legal advice could excuse the jury from drawing an inference in such a manner to undermine the legislation. This places a fundamental principle at stake: the right to legal assistance (which is frequently waived by suspects anyway). If genuine reliance on legal advice - amidst confusing and complex provisions regarding the right to silence, in pursuit of your best interests - could contribute to the case against you, it defies the reasoning to seek legal assistance in the first place, which turns the outcome of Cadder[51] on its head. This position is not desirable; legal advice honestly given and genuinely received shouldn’t culminate a stronger case against the accused.[52]

                       

There appears to be no practical benefit of drawing inferences at trial, given that the conviction rate in England and Wales has not been affected. Based on this analysis, the English system is no model for reform, but it is unclear what measures could be introduced that are realistically attainable, to ensure that the efficiency of the system and the safety of its essential principles aren’t outweighed by means to incriminate the guilty.

 

Conclusion

In theory, adverse inferences justify holding the guilty to account under an efficient criminal justice system. However in practice, it is clear that this unattainable feat cannot be guaranteed. Whilst the right to silence should safeguard innocent suspects from incriminating testimonies, it is clear that those most in need of protection are currently at neglect of the system. Greater efforts should be made to prioritise their position and inform them of their rights, in a more comprehensive manner, or the system lacks credibility and public confidence. When a suspect is confronted with cruel choices, false testimonies provided may simply hinder fact-finding and consume investigative and judicial time and resources - without positively securing conviction. In objection to compelled testimonies, an individual’s right to privacy should be respected to operate as a distancing mechanism between the power of the state and the suspect. It is therefore reasonable that a suspect will be presumed innocent until real evidence establishes otherwise, beyond reasonable doubt, without requiring the suspect to contribute to the prosecution’s case. Most convincingly, in practice, it is unclear how our system could preserve our fundamental rights and ensure effective and efficient justice is administered by introducing an unacceptably complex qualification to the right to silence; which cannot even be justified practically as a means of securing conviction of the guilty.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[1] Criminal Justice (Scotland) Act 2016 s34(4)

[2] See Criminal Justice and Public Order Act 1994, s34-35 for English position

[3] Larkin v HM Advocate 2005 SLT 1087

[4] I Dennis, International protection, human right or functional necessity? Reassessing the privilege against self-incrimination (1995) 54 Cambridge Law Journal 348

[5] Rationale of Judicial Evidence (1827) vol.5, 230

[6] G. Gudjonnson, The Psychology of Interrogations, Confessions and Testimony, (Chichester, 1992) ch4

[7] B. Irving, Police Interrogation : A Case Study of Current Practice (Royal Commission on Criminal Procedure Research Study No 2, London 1980) p153

[8] Research found right to silence was only exercised upon in <5% of cases : R Leng, The Right to Silence in Police Interrogation : A Study of Some of the Issues Underlying the Debate (RCCJ Research Study No 10, London, 1993

[9] Cadder v v HM Advocate [2010] UKSC 43 and see CJ(S)A 2016 s31(2)

[10] Research on two police stations found that 60% of suspect’s requested legal advice - but this doesn’t always mean it is received. : L. Skinns, Im a Detainee, Get Me Out of Here! (2009) 49 Brit J Criminol 399, 407

[11] Vulnerable suspects are most likely to waive the right to legal assistance : T. Bucke, R. Street and D. Brown, The Right to Silence : The Impact of CJPOA 1994 (2000) 36

[12] Roberts and Zuckermann, Criminal Evidence (2nd edn, 2010) 560

[13] CJ(S)A 2016 s42(c) : ‘mental disorder’ requirement doesn’t recognise vulnerable witnesses in general.

[14] M Redmayne, Rethinking the privilege against self-incrimination (2007) 27 OJLS 209 p220

[15] A Stein and D.J Seidmann, The Right to Silence Helps the Innocent : A Game Theoretic Analysis of the First Amendment Privilege (2000) 114 Harvard LR 431

[16] Bentham, n5 above

[17] Dennis, n4 above, 359

[18] Murray v UK, (1996) 22 EHRR 29, 67

[19] Roberts and Zuckermann, n13 above, 551

[20] Redmayne, n15 above, 223

[21] Bucke, Street and Brown, n12 above, 34

[22] England and Wales found that drawing adverse inferences had no effect on conviction rate, ibid, 66-67

[23] D Galligan, The Right to Silence Reconsidered (1998) C.L.P 69, 88

[24] Bucke, Street and Brown, n12 above, 89

[25] Roberts and Zuckermann, n13 above, 551

[26] Ibid

[27] Dennis, n4 above, 357

[28] Criminal Procedure (Scotland) Act 1995, s18

[29] Roberts and Zuckermann, n13 above, 552

[30] The Carloway Review, Report and Recommendations, (17 November 2011), para 7.5.1

[31] Adetoro v United Kingdom 20 April 2010 at [47]-[49] and ibid para 7.5.11

[32] R. Mundy, Inferences from Silence and European Human Rights Law [1996] Crim LR 370

[33] Roberts and Zuckermann, n13 above, 552

[34] Dennis, n4 above, 353

[35] Bentham, n5 above, 238-9

[36] CJ(S)A 2016 s1(1); 3 and 9

[37] Ibid

[38] n13 above, 554

[39] Carloway Review, n32 above, 7.5.24

[40] Redmayne, n15 above, 225

[41] B. Hocking and L. Manville, What of the Right to Silence : Still Supporting the Presumption of Innocence, or a Growing Legal Fiction?, Macquarie Law Journal (2001) Vol 1 No 1, 63.

[42] J Chalmers and F Leverick, Substantial and radical change: a new dawn for Scottish criminal procedure (2012) 75 MLR 842 858

[43] Royal Commission on Criminal Procedure, The Investigation and Prosecution of Criminal Offences in England and Wales (1981) 4.52

[44] Murray v UK, 47

[45] D Birch, Suffering in Silence : A Cost-Benefit Analysis of s34 of the CJPO Act 1994 [1999] Crim LR 769

[46] See Condron v United Kingdom (2001) 31 EHRR 1

[47] R v Bresa, [2005] EWCA, Crim 1414, 4

[48] s34 CJPO Act 1994

[49] Birch, n46 above

[50] R v Howell [2003] Crim LR 405

[51] [2010] UKSC 43

[52] Simon Cooper, Legal Advice and Pre-Trial Silence - Unreasonable Developments, International Journal of Evidence and Proof (2006)

 

A critical discussion of the pro and anti-competitive effects of vertical restraints and the extent to which EU Competition Law is in line with, or diverges from, Bork’s statement.

February 16, 2017

This article, written by Laura Rankin (4th Year LLB ), criticises Robert Bork’s view of vertical agreements and why, in light of the modernisation process of the Euorpean Commission, undertakings are still reluctant to incorporate such agreements. It is clear that the current law diverges significantly from the view of Bork owed particularly to the ambiguity of what is to be considered the primary aim of EU Competition Law.

 ‘We have seen that vertical price fixing (resale price maintenance), vertical market division (closed dealer territories), and indeed, all vertical restraints are beneficial to consumers and should for that reason be completely lawful.’ (Robert Bork)

A critical discussion of the pro and anti-competitive effects of vertical restraints and the extent to which EU Competition Law is in line with, or diverges from, Bork’s statement.

 

Vertical agreements can be defined as the relationship between firms that trade with each other along a chain that moves upstream to downstream.[1] In its’ approach, the European Union holds that a blacklisted group of hardcore restraints, are more problematic than others – notably Resale Price Maintenance (RPM) and Absolute Territorial Protection (ATP). This can be seen to diverge from the opinion of academics such as Bork who argue for the legality of such restraints. In order to assess whether the EU is correct in its approach, the pro and anti-competitive arguments for vertical restraints will be considered. However, ambiguity remains as to what the main goal of EU Competition Law appears to be – whether it is consumer welfare or single market. This may have a potential impact in determining the accuracy of Bork’s argument given his restrictive view of consumer welfare.

 

   The roots of pro-competitive theories can be traced back to the Chicago school – they contended that vertical restraints increase sales whilst lowering distribution. Bork went further holding that restrictions on output are anti-competitive whilst an increase in input is pro-competitive[2] - arguing for per se legality for vertical restraints. His analysis led many to consider the potential benefits of vertical restraints on intra brand competition, particularly where RPM may be required in order to encourage retailers to compete on non price criteria such as aiding the entry of a new product onto the market.[3] The end result is correlation between the interests of the manufacturer and consumers.[4]

 

   Furthermore, the free rider explanation has been described as the cornerstone of the pro competitive debate regarding vertical restraints.[5] The concept was developed by WS Bowman and refined by Lester Telser.[6] Free riding exists where retailers can offer point of sale product specific services that can lead to an increase in total sales of the particular product.[7]

 

   Telser justified the existence of RPM by virtue of the pre- sale services theory, owed to the extra margin that the restraint provides.[8] Thus, RPM can clearly allow dealers to promote the products of a manufacturer, shielding them from free riders that seek to benefit from the promotional services whilst maintaining lower prices. Evading the costs of the extra services is of clear benefit to the free rider, allowing them to gain an advantage over competitors. Moreover, the allocation of exclusive territories could also prevent free riding whilst allowing promote of goods and services.[9]

 

   Additionally, free riding occurs in relation to the sale of high quality products. Leegin[10] highlighted that while RPM can ensue a reduction in intra brand competition, it can promote inter brand. It does so by providing quality certification and allowing a reduction of free riding at the distribution level on areas such as provision of services. Those in favour of such restraints such as Rey and Stiglitz, believe that exclusive territories can help to create and maintain reputation.[11]

 

   The European Commission is more than aware of the benefits that Vertical Restraints promote[12], particularly in light of the free rider problem and the opening of new markets. If vertical restraints seek to enhance these particular issues then this is in parallel with the Commission’s wider goal of consumer welfare. However, the Commission contends that free riding can be used as a justification to enforce vertical restraints but only where pre-sale services and promotional activities in are in question. This has been met with some criticism, particularly from those who believe that free riding has a positive effect of lowering prices and increasing innovation.[13]

 

  Whilst vertical restraints have many pro-competitive benefits, they are not always justified or per se beneficial for competition.[14] Kneepkens argues that RPM and VTR can have the equivalent effect of a cartel.[15] Arguably, the enforcement of RPM will be anti competitive in that manufacturers will face significant pressure from dealers to impose RPM.[16] Furthermore, exclusive territories can limit the number of dealers, meaning they can engage in tacit collusion. Dealers will seek to soften competition to increase profit.

 

   In a price fixing cartel, every participant can present a product at a price lower than the mandated price. If the remaining members adhere to the cartel price, the member who chooses not to comply will enjoy an increase in market power, to the detriment of its’ competitors. In contrast, there may be an allocation territories - meaning that each individual dealer can charge those consumers at higher prices.[17] However, where territorial restraints were used in the US to restrict intra brand competition, this negatively impacted inter brand competition as manufacturers increased their prices, whilst there was no clear impact on demand by the consumers.[18]

 

   Furthermore, manufacturer cartels can benefit from RPM as it allows wholesale and retail prices to remain constant. Arguably, an upstream level cartel may utilise RPM as an incentive management tool.[19] In order for RPM to be efficient in its’ role in such a cartel, manufacturers must be allocated specific territories. Whilst academics have regarded the imposition of RPM as a facilitating tool as implausible[20] it has previously been enforced to sustain long- term cartels of this kind. However, Bork holds the view that RPM is not required for manufacturer cartels – this is owed to the justifications for cheating inside a cartel. [21]

 

   In addition, where producers have significant market power, they can tie distributors by enforcing exclusive distribution agreements. Ultimately, this provokes foreclosure for competitors at the distribution level by increasing the entry standards for new entrants and undeniably the level of investment necessary in order to enter the market.[22] This could lead to the partitioning of national markets - contrary to the EU objective of market integration.[23] This is particularly prominent where there are economies of scale or scope at distribution level. [24]

 

   Thus, whilst vertical restraints can be pro-competitive, it would appear many academics fail to agree with Bork in his analysis. Comanor holds the view that the preferences exercised by all consumers must be considered – not just those at the margin.[25] Prices may increase, and RPM can be used to eradicate all effective inter brand and intra brand competition – yielding a monopoly outcome if applied with franchise fees.[26]

 

  Under EU Competition Law, vertical restraints must undertake two stages of examination under Article 101 Treaty of the Functioning of the EU (TFEU).[27] It must be ascertained if the restraint restricts competition by object or effect  - capable of hindering trade between states. If so, the restraint must be assessed under Article 101(3) to decide whether individual exception can be sought.

 

  In the early nineties, the Commission received intense criticism as it tended to deal with vertical agreements by category leading to inconsistency. It responded in 1999 with a Block Exemption for vertical agreements which fall under Article 101(1)[28] accompanied by a coherent set of Guidelines.[29]

 

  In adopting this modern approach, the Commission aligned itself with the view of the courts in that many agreements will not infringe Article 101(1).[30] If they do, then Article 101(3) promotes a flexible approach allowing a fuller economic analysis. This means that undertakings should seek to ascertain if the agreement could benefit from the ‘safe haven’[31] before seeking economic analysis by virtue of the Treaty articles –a more sensible approach. The Regulation was reconsidered in 2010[32] and arguably, the amendments align with the modernisation process conducted by the Commission – inclusive of some overdue clarifications.[33]

 

   A key aspect of the 1999 and 2010 BER is that firms with less than 30% market share can benefit from vertical restraints. However, a crucial change introduced in 2010, in response to the changing behavior of the markets, is that the 30% cap now applies to not only the supplier but the buyer. This is owed to the fact that the latters market share could foreclose a supply market as the result of an agreement. Undertakings may also seek to benefit from the De Minimis notice where the restraint does not restrict competition by object.[34] 

 

   However, what has remained unchanged is the Article 4 Hardcore Restrictions. There is a presumption that these four restrictions have, by their object, the aim of restricting or distorting competition and therefore are per se illegal. Thus, the safe haven offered by the block exemption will not be extended to agreements which such black listed restraints.

 

   Minimum RPM imposed by distributors are treated as restrictive by object as price competition is so important that it can never be eliminated.[35] There is a strong presumption on the part of the Commission that at the distribution level, intra-brand competition is vital to the competitive process[36] and that minimum retail pricing can provoke horizontal effects. The Commission have imposed significant fines where agreements have been found to include such restraints.[37] However, Maximum RPM is not categorised as a hardcore restriction.

 

In light of the ruling of Leegin it was thought that this would encourage the EU to eliminate hardcore restrictions from its’ regulations. Reindl[38], on the one hand, is of the belief that the EU missed an opportunity to move towards an analytical approach to vertical restraints which is in line with the more economic approach as a whole. However, Van Doorn whilst acknowledging the benefits posed by RPM, in particular, feels that it should remain within the ambit of Article 4.[39]

 

   Whilst the BER accepts limited territorial exclusivity, it is wary of the repercussions of exclusive distribution – particularly the partitioning of national markets. However, whilst protection may be granted for active sales, the same cannot be said where a retailer may wish to be protected from passive sales of a competitor – ATP. The Commission is of the view that ATP, like RPM, will not satisfy Article 101(3) and has in the past imposed fines where agreements which have been inclusive of such restrictions.[40] Both Consten [41]and Société La Technique Minière [42], highlighted that where an exclusive distributor is allocated a specific territory it will not invoke Article 101(1). However, if the agreement can be perceived to have been concluded on the basis that the end result would partition the markets of a member state, then this will amount to an infringement of Article 101(1) by object. Both cases provide a key example of the court aiming to balance pro competitive efficiency gains against the wider EU competition goal of market integration. A similar situation was found to have occurred in Yamaha[43] and JCB.[44] Consten, in particular, highlighted that an exemption will only be granted if benefits of such a restraint show appreciable object advantages which neutralise any anti-competitive effects - in line with Article 101(3).

 

   That being said, in accordance with the Vertical Guidelines, it is possible in the case of ATP, that an exemption from Article 101(1) can be sought for two years where a manufacturer requires significant investment from retailers to enter a new market.[45] This runs contrary to Consten, where the justification to enforce such restrictions was not considered.

 

  Paradoxically, it may be the belief of at least one party to the agreement that the restraint in question is essential to achieve efficiency and benefit consumers. B&W Loudspeakers, highlights that the Commission has previously failed to consider that restraints inclusive of RPM or ATP can benefit from Article 101(3).[46] Instead, it was concluded that they were anti-competitive and not beneficial for consumers.[47] Indeed, in Nintendo[48], the Commission held that agreements, which included ATP, could not meet the criteria of Article 101(3).

 

However, GlaxoSmithKline[49] offers some clarity here in that it is not impossible for a hardcore vertical restraint to be considered pro-competitive by EU courts.[50] The General Court held that prohibition of parallel trade would not amount to an infringement of Article 101(1).  By not granting an exemption to a dual pricing system controlled by GSK meant parallel trade ceased was held by the General Court to be fundamentally flawed.[51] However, it was later stated by the CJEU that the General Court had erred in law in holding that the welfare of consumers was a necessary consideration. The court conducted a competitive analysis and relied on Consten to conclude that the prevention of parallel imports was illegal. This serves to reinforce the uncertainty surrounding what qualifies as the fundamental goal of EU Competition policy as the General Court was in favour of consumer welfare –whereas the CJEU opted in favour of market integration.

 

  The modern approach shown by the Commission and the EU courts, mean that the 2010 Guidelines are now more open to the idea that where Article 101(1) has been infringed – individual exemptions can be granted by virtue of Article 101(3) where efficiencies can be proven.[52] If the undertaking wishes to succeed, it has the burden of proof in showing that the agreement fulfills Article 101(3), which has been described as a virtually insurmountable obstacle. [53]

 

   There has yet to be convincing evidence that Commission has accepted that hardcore restraints can be beneficial to competition – therefore firms may not wish to incorporate such restraints. This is due to the absence of empirical evidence which clearly highlights, for example, whether the benefits of RPM outweigh the problems it can cause. [54] The Commission has maintained the view that there is an alternative to restrict competition by virtue of less restrictive measures.  

 

   Ergo, it is readily apparent that vertical restraints provoke a great deal of benefits – notably the ability to solve the free riding problem. Further analysis highlights the severe anti competitive effects of vertical restraints where RPM and ATP – which fall foul of the fundamental objectives of EU competition policy. However, problems lie in the fact that the pro competitive benefits tend to focus on consumer welfare, whereas the anti competitive problems are based on the goal of market integration. Therefore, it is not clear which goal the Commission and the courts is seeking to protect. Even though there is evidence that ATP is treated with greater leniency than RPM – there seems to be no convincing argument which would mean either restraint is ever likely to not be regarded as per se illegal. To follow the US approach in such cases would increase both regulatory costs and the burden on the Commission, contrary to what the Regulation seeks to achieve.   Therefore, it is apparent that the EU approach diverges significantly from the argument proposed by Bork.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[1] Vettas, N, ‘Developments in Vertical Agreements’, The Antitrust Bulletin (2010) 55(4), 843-874.

[2] Bork, R, The Rule of Reason and the Per Se Concept: Price Fixing and Market Division – Part II’, (1966) ,Yale L.J, 75(3), 377- 475

[3] Jones, A and Sufrin, B (2016). EU Competition Law. 6th ed. Oxford: Oxford University Press

761

[4] Comanor, W, ‘Vertical Price-Fixing, Vertical Market Restrictions, and the New Antitrust Policy’, (1985), Harvard L.R, 98(5), 983-1002

[5] Paldor, I, ‘The Vertical Restraints Paradox: Justifying the Different Legal Treatment of Price and Non- Price Vertical Restraints’, (2008) The University of Toronto L.J, 58(3), 317-353

[6] Telser, L, ‘Why Should Manufacturers want Fair Trade?, (1960), Journal of Law and Economics 3(1), 86-105

[7] Paldor, I, ‘The Vertical Restraints Paradox: Justifying the Different Legal Treatment of Price and Non- Price Vertical Restraints’

[8] Zevgolis, N, ‘Resale Price Maintenance (RPM) in European competition law: legal certainty versus economic theory?’ (2013), E.C.L.R 34(1), 25-32

[9] Marvel, H.P, ‘Resale Price Maintenance and Resale Prices: Paying to Support Competition in the Market for Heavy Trucks’, (2010), Antitrust Bulletin 55(2), 79-99

[10] Leegin Creative Leather Products Inc v PSKS Inc (1997) 522 US 3

[11] Rey, P and Stiglitz, J,  ‘The Role of Exclusive Territories in Producers Competition’, (1995), RAND Journal of Economics ,26(3), 431

[12] Guidelines on vertical restraints [2010] O. J. C 130/1 , para. 106-109

[13] Consumer Focus, Consumer Focus Response to Vertical Restraints Block Exemption Regulation, (September 2009), 11-12

[14] European Commission, Green Paper on Vertical Restraints in EC Competition Policy, COM (96) 721, para. 54

[15] Kneepkens, M,’Resale Price Maintenance: Economic Call for A More Balanced Approach’, (2007) 28(12) E.C.L.R, 660-661

[16] Comanor, W, ‘Vertical Price-Fixing, Vertical Market Restrictions, and the New Antitrust Policy, Harvard Law Review’

[17] Herbert J. Hovenkamp. Economics and Federal Antitrust Law. St. Paul, MN: West Publishing Co. 1985, xvii, 592 pages (Hornbook Series Lawyer’s Edition);  Jay Palmer v BRG of Georgia (2010) 498 U.S. 46 illustrates the reality of a price increase by horizontal territorial market division

[18] B. Durand, “On the Efficiency of VTR” (thesis, Boston College, The Department of Economics, U.S.A., May 2000).

[19] Iacobucci, E, ‘The Case for Prohibiting Resale Price Maintenance’, (1995) 19(2) World Comp.L. & Econ.Rev. 71

[20] Sullivan, E.T and Jeffrey, L (2014). Understanding Antitrust and Its Economic Implications . 6th ed. Newark: Mathew Bender & Co. 227

[21] Jedličková, Barbora (2012) The law of vertical territorial and price restraints in the EU and in the USA: a critical analysis of vertical territorial and price restraints - an argument against legalisation. PhD thesis.

[22] Organisation for Economic Co-operation and Development (‘OECD’), Competition Policy and Vertical Restraints: Franchising Agreements (1994) 192–3. The EC believes that inter-brand competition is a crucial indicator of workable competition: European Commission, Green Paper on Vertical Restraints in EC Competition Policy, COM(96)721, 20

[23] European Commission, Green Paper on Vertical Restraints in EC Competition Policy, COM(96) 721, para. 70 and 78

[24] Comanor, W, ‘Vertical Arrangements and Antitrust Analysis’, (1987) 62(5), N.Y.U L. Rev. 1153

[25] Comanor, W, ‘Vertical Price-Fixing, Vertical Market Restrictions, and the New Antitrust Policy’

[26] Bennett, M et al., Resale Price Maintenance: Explaining the Controversy, and Small Steps Towards a More Nuanced Policy, (2010), MPRA Paper No. 21121, Online at www.mpra.ub.uni-muenchen.de/21121 [Accessed 20 December 2016]

[27] Treaty on the Functioning of the European Union, O.J. C 83 of 30.3.2010

[28] Regulation 2790/99 Vertical Restraints [1999] O.J. L336/21

[29] Guidelines on Vertical Restraints [2000] OJ C291/1

[30] Jones, A and Sufrin, B (2016). EU Competition Law, 768

[31] Guidelines, para 110

[32] Commission Regulation 330/2010 on the application of Article 101(3) of the Treaty

on the Functioning of the European Union to categories of vertical agreements and

concerted practices, O.J. L 1021

[33] Brenning –Louko, M et al., ‘Vertical Agreements: New Competition Rules for the Next Decade’, (2010) 2 Competition Policy Newsletter, 15

[34] Notice on agreements of minor importance which do not appreciably restrict

competition under Article 81(1) of the Treaty establishing the European Community (“de minimis Notice”) [2001] OJ C 368/13

[35] Case 26/76 Metro – SB – Großmärkte GmbH v Commission (Metro I), [1977] ECR 1875, para.21

[36] Jones, A,. ‘Resale Price Maintenance: A Debate About Competition Policy in Europe’, (2009), European Competition Journal, 5(2), 479-514

[37] Case C -167/04 JCB Service v Commission [2006] ECR I-8935; Yamaha, IP/03/1028, 16 July 2003

[38] Bennett, M et al., Resale Price Maintenance: Explaining the Controversy, and Small Steps Towards a More Nuanced Policy, (2010)

[39] Van Doorn, F, Resale Price Maintenance in EC Competition Law: The Need for  Standardised approach, (November 6 2009). Online at www.ssrn.com/abstract=1501070 [Last Accessed 23 December 2016]

[40] Case C-74/04 P Commission v. Volkswagen AG [2006] ECR I-6585

[41] Cases 56/64, 58/64 Établissements Consten S.à.R.L. and Grundig-Verkaufs-GmbH v. Commission of the European Economic Community [1966] ECR 299

[42] Case 56/65, Société La Technique Minière v Maschinenbau Ulm GmbH [1966] ECR 235,

[43] Yamaha, IP/03/1028, 16 July 2003

[44] Case C -167/04 JCB Service v Commission [2006] ECR I-8935

[45] Guidelines, para 61

[46] IP/02/916, Commission clears B&W Loudspeakers distribution system after company deletes hard-core violations, 24 June 2002

[47] COMP/3344 Grundig, 23 September 1964

[48] Case T-13/03, Nintendo and Nintendo Europe v Commission [2009] ECR II-975

[49] Joined cases C-501/06 P, C-513/06 P and C-519/06 P GlaxoSmithKline Services Unlimited v Commission of the European Communities [2009] I-09291

[50] A similar conclusion was drawn in Case 243/83 Binon & Cie v SA Agence et Messageries de la Presse [1985] ECR 2015

[51] Jones, A and Sufrin, B (2016). EU Competition Law. 817

[52] Guidelines, para 47

[53] Maci, M, ’The assessment of RPM under EU Competition rules: certain inconsistencies based on a non-substantive analysis’, (2014) E.C.L.R, 35(3), 103-109

[54] Kyprianides, G.P, ‘Should Resale Price Maintenance be per se illegal?’, (2012), E.C.L.R, 33(8),  376-385

 

Are Two Really Better Than One? A Critical Evaluation of the Law of Human Reproductive Cloning

February 16, 2017

In this article, Rachael Jane Ruth (Diploma in Professional Legal Practice), critically evaluates the strict governance surrounding Human Reproductive Cloning through analysis of its potential benefits and risks.

Are Two Really Better Than One? A Critical Evaluation of the Law of Human Reproductive Cloning

The law as we understand it today is rapidly evolving in response to societal norms and developments. Controversial topics often make for the most contentious and interesting discourse: so too, in the discussion of law and legal regulation. Cloning is a relatively new, novel, and expectedly controversial area of development in the technological and scientific industries. While Dolly the Sheep was famously successfully cloned in 1996,[1] human reproductive cloning, in particular, carries ethical consequences which reverberate through the legal world. The Centre for Bioethics and Public Policy approves the definition of human reproductive cloning as ‘the creation of an individual who has existing DNA to that of an existing human being’, the ‘clone’ as an embryo being implanted, carried to full-term and allowed to develop further.[2] Therefore, since the resulting ‘created’ individual is neither the sibling nor offspring in the traditional sense of the original human, their status as ‘clone’ is entirely unique and requires a rigorous legislative framework of governance. The uniqueness of the notion of human reproductive cloning requires a sensitive but appropriately robust level of regulation, and to understand whether our current laws and our potential regulation in the future meet this requirement we must look to the controversies surrounding the concept in further detail.

The Legislative Framework of Cloning in the UK

The successful cloning of Dolly the Sheep led to what Julian Savulescu has described as an ‘ill-informed wave of public, professional, and bureaucratic fear and rejection of the new technique’.[3] Human cloning was, immediately, widely opposed,[4], [5] and even today is viewed by many as the gateway to a ‘dystopian’ future where such ‘grotesque’ practices are reality.[6] The law surrounding the issue of cloning in the UK is currently governed by the Human Fertilisation and Embryology Act 1990. In brief, reproductive cloning is banned by the Act, while cloning for therapeutic and research purposes is permitted to an extremely limited extent within the legislation. The definition of an ‘embryo’ within the Act is broad enough to cover a cloned embryo, thereby giving the ‘clone’ the same embryonic status and rights as otherwise would be granted.[7] The Act does restrict the use of embryos – they must be used and kept only with a licence granted under the legislation, not kept for longer than 14 days and prohibited forms must not be implanted in a woman,[8] permitting in-vitro fertilisation but not cloned embryos. The legislation does demand that researchers jump through a number of hurdles, but with the appropriate justifications - such as increasing knowledge of and researching treatments of various diseases[9] - it seems relatively manageable to secure a licence for the creation and use of embryos for research and experimentation purposes. Indeed, Savulescu further justifies the practical use of human cloning to create stem cells for the treatment of disease.[10] It appears that the purpose of using cloning techniques – research, as opposed to reproduction – plays a large role in its degree of societal acceptance. Joshua May’s research has indicated that ‘disgust’ and ‘repugnance’ are more notably prominent reactions when participants were faced with the concept of reproductive, rather than therapeutic, cloning.[11] The law as it stands currently prohibits the use of embryonic cloning for reproductive purposes unequivocally, and is therefore ranked among those deeply-controversial and sensitive issues which face the strictest regulation. However, with time and technological advancement, our understanding of reproductive cloning will increase and undoubtedly the call to permit it will also grow. Our regulation in the future requires careful consideration in light of the benefits and fears surrounding reproductive cloning to ensure we are ready to implement new, adequate legal regulation when the desire for human reproductive cloning inevitably demands that the technology be permitted. 

In Defence of Human Reproductive Cloning

Human reproductive cloning, as a new concept, has numerous societal benefits - in theory. Cloning is yet another solution to the ever-prominent issue of infertility, for those families and individuals unable to produce and carry sustainable embryos.[12] From a pragmatic and scientific perspective, cloning has been suggested as a method to allow reproduction by individuals who may otherwise choose not to conceive children due to their potential to pass on mitochondrial DNA mutations.[13]  Cloning also has the potential to improve and increase reproductive options from a feminist familial perspective: as a form of assisted reproduction, human cloning offers another alternative for female couples or single women unwilling or unable to use donor sperm to produce a child. Cloning in its literal sense can be beneficial as it allows the exact genetic recreation of an existing human, so could result in the production of an identical child to compensate for the loss of a loved one, or indeed could duplicate a person to use their identical genetic makeup as the basis for donation or transplantation to save the life of the ‘original’. It can easily be argued on these bases that human reproductive cloning is a hugely beneficial tool for the use of society under controlled conditions. But why should we as humans believe we have the right to manipulate reproduction to such an extent as to duplicate people? Some argue that the fact of the mere existence of identical twins suggests that cloning has a natural place in reproduction and genetics, since twins originating from the same zygote have the same genetic composition. Research has demonstrated that neither identical nor non-identical twin siblings view human cloning as any more ‘unnatural’ than twinship,[14] and both clones and twins are perceived as being rare with the benefits and detriments arising only in rare circumstances. Some libertarians consider that if we have developed the technology to proceed with human reproductive cloning, then we have as a society earned the right to use it,[15] provided there is an appropriate safety and legislative framework to govern its use.

Objections to Human Reproductive Cloning

However, the ethical balance of human reproductive cloning at its core requires a measured approach to the potential detrimental effects to society as a whole and the individual. A number of objections to the idea of cloning come from a theological or philosophical stance: traditionalist Christianity, and indeed many other prominent religions worldwide, conceives of a child as being the product of a wholesome relationship of love between a man and a woman. A clone may therefore be perceived as an anomaly; an abomination against nature or against the will of a deity. From a less theological stance, human reproductive cloning diminishes the potential for every human being to make a different impact upon this world – essentially, if humans are no longer unique individuals, their contributions to society can no longer be predictably unique. This method of thinking also presents a risk to the human identity should cloning become an accepted method of reproduction. There is arguably a risk of mental harm posed both to the cloned human and the ‘original’ if they have the exact same genetic identity as each other in a world where the vast majority of humans are original and unique, and pride themselves on such. Society does indeed place a heavy emphasis on the promotion of uniqueness of individuals, after all: ‘be yourself’ is surely one of the most commonly given pieces of advice throughout a person’s life. How can one be himself if his DNA already exists as someone else?

 The potential practical harms to society of reproductive cloning are somewhat more obvious. One reason to consider cloning as a method of reproduction would be in the cases of infertile, homosexual or single-gender couples. However, the created child would have the same genetic makeup as one parent, and have no biological relation to the other whatsoever. This imbalance could conceivably result in a familial asymmetry of relationships and cause long-term problems for those involved. An alternative line of argument suggests that adding cloning to the solutions for couples who are unable to reproduce naturally diminishes the importance of adoption as an option. Introducing yet another method of assisted reproduction using some form of genetic information from the parent/s in question would appear to suggest that having a genetic link with your children is more important than the relationship developed through nurture. This ideology may prove to be a dangerous one to promote in our society where numerous children are already overlooked for adoption in favour of such methods as in-vitro fertilisation.

As previously mentioned, one of the main reasons for advocating human reproductive cloning is to create a new life to act as a ‘saviour sibling’ for another child requiring life-saving donation or transplantation. It would not be a stretch of the imagination to envisage the psychological damage caused to a child who is reared by their ‘parents’ for what they may feel is the sole purpose of saving the life of the older – and by the very nature of their creation, more important - child. They may feel as if their fate is sealed, and that they have no further purpose after donation is complete. Regardless of whether the method of their creation is accepted or not, the risk of psychological harm to a child appears to be enough reason to stop and consider human reproductive cloning as potentially risky. Fears of physical harm caused by cloning do still continue to exist alongside these mental harms. Evidence suggests that an extremely high percentage of mammalian cloning experiments result in miscarriage, stillbirth or grave birth defects,[16], [17] and at the current early stage of our understanding of human reproductive cloning it is a valid consideration that these complex genetic issues may well occur within the human species.

Finally, conceivably the most harmful reason for which people would hope to use reproductive cloning is to replace a lost loved one. Lost children or partners may leave such emotional scarring that their living relatives and friends may wish to recreate the person in their entirety, almost as if to heal the wound. An attempt to identically replicate an individual is emotionally dangerous, as this level of genetic determinism cannot be absolutely predicted.[18] The ‘clone’ may live out their life in the shadow of the deceased, expected to behave in the same way and form the same relationships. The relatives may be at risk of fear and disappointment when the cloned person inevitably grows into a different character from the ‘original’ due to differing environmental influences on their life. A serious concern when a mother has cloned her deceased partner is that the relationship with the child cloned from his DNA is neither explicitly parental nor that of lovers. How can society be certain that these relationships of apparent parent and child do not eventually become sexual? The law as it stands recognises a mother as the woman who gave birth to the child – but will it be appropriate to condemn such sexual relationships as incestuous, if the mother and the cloned individual have no genetic link? Should cloning become an accepted method of reproduction, particularly in circumstances such as the above, legislation will have to be added to with detailed regulation on the established legal and social status of a ‘clone’. A counter-argument suggests that we have no evidence to support the idea that families will struggle to differentiate between the identity of the ‘clone’ and of the original person, as humans have successfully adapted to non-traditional family arrangements throughout history.[19] The traditional family paradigm has, after all, already expanded to encompass a range of gender identities which may have been unthinkable in decades past; it would follow that the inclusion of cloned genetic identities may become a practical reality in the future. There are few conclusions of substance we can reach on the subject of balancing the benefits with the negative results of human reproductive cloning, as too many factors rest on the outcome of situations we have not yet encountered.

Solutions and Conclusions

 The law can be shaped to minimise the potentially damaging consequences of human reproductive cloning, such as the above-suggested regulation of the relationship between the ‘clone’ and its creators. However, it is not feasible to suggest that legal regulation should or even could prevent societal and psychological harms which might occur. A reasonable alternative, should human reproductive cloning become an accepted technological advancement, is to restrict its use to a very specific and tightly-regulated set of circumstances. Perhaps, for example, reproductive cloning might be permissible in situations where a person will certainly die without the donation of materials from someone with the precise same genetic makeup. Families who wish to proceed may be required to demonstrate the care with which the ‘clone’ will be raised and the safeguards put in place in the home environment to protect the child and the family from any foreseeable harms. However, one can only imagine the cost of a cloning procedure. IVF, as a much more general example, is widely-used but is still an expensive - although for many families, manageable - procedure. The very existence of the cloning technology for some may create potentially devastating inequalities. A rich family may be able to save their dying child by creating a ‘clone’, not only through being able to afford the procedure, but also in demonstrating to the relevant authority they can secure a comfortable and safe life for both children after donation. However, a less-affluent family may be unable to afford or may even be refused the life-saving procedure. Technology would need to advance in huge leaps before cloning became affordable and accessible to the point where this inequality did not require careful regulation. It does seem that human reproductive cloning is far from sufficiently understood that we can predict its outcomes in order to adequately regulate its use.

In summation, human reproductive cloning is so relatively poorly-understood an area of technology that we may not know what we need from the law until the situation is upon us. Leaving areas of law potentially unregulated in the face of unknown obstacles is, however, dangerous to both society and those involved personally in the cloning procedure. It seems appropriately strict that the current law should include a blanket ban on human reproductive cloning as at this point we do not fully understand the practical consequences of allowing the technology to be used. In the future, we will be required to carefully evaluate each situation in which the need or desire for reproductive cloning might arise in order to best predict the implications and legislate for them to provide the best protection for society and individuals.

 

 

[1] ‘The Life of Dolly’, Roslin Institute at the University of Edinburgh, http://dolly.roslin.ed.ac.uk/facts/the-life-of-dolly, accessed 9th February 2017

[2] Reproductive Cloning: Basic Science, Centre for Genetics & Society 2003

[3] Savulescu, J., Should we clone human beings? Cloning as a source of tissue for transplantation, Journal of Medical Ethics, 1999; 25:87-95

[4] World Health Organisation, Proposed international guidelines on ethical issues in medical genetics and genetics services, Geneva, WHO, 1998

[5] UNESCO, Declaration on the human genome and human rights, adopted 11th November 1997, Article 11, UNESCO, 1997

[6] Kass, L.R., Preventing a Brave New World: Why we should ban human cloning now, New Republic, 2001, 224: 30-9

[7] Human Fertilisation and Embryology Act 1990, s1

[8] HFEA 1990, s3

[9] HFEA 1990, Schedule 2 Paragraph 3A(2)

[10] Savulescu, J., Should we clone human beings?

[11] May, J., Emotional reactions to human reproductive cloning, Journal of Medical Ethics, 2016, Volume 42 - 1

[12] Reproductive Cloning Arguments, Centre for Genetics & Society, May 2006

[13] Richardson et al., Concise Reviews: Assisted Reproductive Technologies to Prevent Transmission of Mitochondrial DNA Disease, published 17th February 2015, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4359624/, accessed 9th February 2017

[14] Prainsack, B., The ‘conflict of conflicts’: Human Reproductive Cloning and the Creation of New Citizens, ECPR Joint Session of Workshops, 2006

[15] Savulescu, J., Should we clone human beings?

[16] The Ethics of Reproductive Cloning: Child, Family and Society, The President’s Council on Bioethics, Staff Working Paper, Feb 2002

[17] It took Ian Wilmut and his colleagues 276 attempts to successfully produce Dolly the Sheep.

Brock, D.W., Cloning Human Beings: An Assessment of the Ethical Issues Pro and Con, NBAC, Cloning Human Beings – Volume II, Commissioned Papers, 1997

[18] de Melo-Martin, I., On Cloning Human Beings, Bioethics 16: 246 - 65

[19] On Cloning Human Beings, above.

 

 
 

Labour as a fictitious commodity: The insight of Polanyi and the double movement in the development of the European Union

February 16, 2017

In this article, Yazdon Taghinia (4th year LLB) examines the concept of labour as a fictitious commodity as argued by the works of Karl Polanyi in the context of the development of the EU.

Labour as a fictitious commodity: The insight of Polanyi and the double movement in the development of the European Union

 

Labour holds a tripartite position in the works of Polanyi alongside land and money, defined under what he called “fictitious commodities”. Indeed, the term seems at once to be incompatible with logic. How can a commodity be fictitious? A good or service offered for exchange surely offers its ambit to almost anything imaginable so long as there is a demand for that particular thing. The key to understanding how a commodity can be fictitious is to first understand that the institutions under which the very term subscribes is a fiction – that of the market. The phrase ‘fiction’ here is not meant in the sense that it does not exist; market forces are obviously tangible things. The point is to define the commodity in the framework of what it is subjected to and not in the literal understanding of the word. Indeed, Polanyi’s assertion is that labour, along with money and land, were never intended to be subject to market forces in the manner they began to be in the late 18th and early 19th centuries. Indeed he explicitly states that the market for land and labour was upheld on the fiction that they were produced for sale.[1] He furthers this point by detailing the consequences of subjecting the fictitious commodities wholly to market forces, stating that it shall lead to their annihilation.[2] Polanyi famously states that the double-movement of market forces met with the establishment of protections to counter them is the balance that presents itself once this creation of labour markets has occurred. It is of great importance to understand that the commodification of labour came last in the progression of commodification of land and money before it. There are two reasons for this importance. One is that it allows us a greater understanding of precisely why the labour market came to be created. The second is that, when considered with my later analysis, it will aid us in gaining an insight as to exactly how this creation of fictitious commodities came about and the main overarching theme that reveals itself, particularly in our examination of the European Union. The posit briefly is this; that labour markets are created for the very reasons Polanyi details, but the advent of the EU and its development meant that the critical role of the double-movement became impeded by the nature of the EU construct. The creation of labour markets ultimately removes power from the labourer in both Polanyi’s view and in the context of the EU. Furthermore, in times of economic turmoil, the labour market becomes a tool of exploitation and is almost invariably de-regulated in a bid for further competitiveness and economic growth. The political balance is only favourable to labourers in times of relative economic ease. Polanyi’s counter-movement does not equally protect all parts of society, just as the initial movement does not equally benefit all parts. In arguing this, I will first establish in detail Polanyi’s conception of labour as a fictitious commodity and the consequences of its commodification, and then examine these insights in the context of the European Union’s approach to labour and social policy, and how Polanyi’s insights are ultimately affirmed by this.

The Creation of Labour Markets

As has already been stated, Polanyi believes that labour is a fictitious commodity because it was not made to be subject to market forces in the way that other commodities such as grain are. This is because the proximate impact upon the individual when subjecting labour to market forces meets a certain threshold. The meeting of this threshold, and the consequence of this creation of labour markets, annihilates organic life and replaces it with an “atomistic, individualistic one”[3]. In this sense, sellers of labour are forced to compete against each other, whereas before there was a degree of the workforce as a whole (in the existence of entities such as guilds). To validate and understand these assertions, it is necessary to examine the historical progression that Polanyi puts before us in how these labour markets arose. Once an understanding is gleaned of why things developed as they did, it is possible to extrapolate Polanyi’s insights to other contexts.

Polanyi recognised that freedom of contract was designated as the way to realise these labour markets, and was implemented first in Britain on the pretence of “non-interference” – also known as laissez-faire.[4] Thus, the existing non-contractual relationships were dismantled in favour of one that subjected wages to market forces. This was done in a bid to increase productivity. But how does creating a labour market increase productivity? More importantly, what would compel an individual to work? Polanyi cites hunger as the artificially created impetus behind such a system.[5] Speenhamland provided a paternalistic guarantee that no individual would be subject to the scourge of hunger. Indeed, Polanyi noted this method of coercion in indigenous, primitive societies that colonialism came across which he noted were “more humane than market economy, but less economic.” [6] In this sense, economic advancement can be seen as being driven by the threat of starvation, and it is here that the “annihilation” Polanyi speaks of reveals itself. It also explains why, despite the supply of workers provided by the old Poor Laws particularly to the agriculture sector, there was nowhere near the level of economic growth that came with the industrial revolution. Certainly, it follows logically. No persons are compelled to work for a lower wage, or indeed even one slightly more than they were making, if the necessary difference is already being compensated. One does not concern themselves with the functioning of an economic machine to its maximum efficiency. Rather, humanity is motivated by their own best interest – in this case their interest not to starve to death. The market is subordinated to their needs, or as Polanyi notes, is embedded. When the functioning of an efficient economy places itself above the needs of the individual with the threat of starvation, this can be said to be an attempt to disembed the market and to subordinate the labourer. From this, it is not hard for one to envisage how this leads to dislocation and the unravelling of society; organic society becoming liquidated[7] as a result of the creation of labour markets to increase productivity and ultimately economic advancement.

Indeed, a result of this sudden dislocation was that the workers place in society became precarious at best.[8] Excluded from the vote, these individuals were essentially at the mercy of the factory owners (or in Marx’s words, those with the means of production). Creation of labour markets served to provide them a disservice to their livelihoods whilst allowing the factory owners to profit in a system devoid of democratic process for the worker themselves. This notion is key and I shall refer back to it in my later discussion.  In keeping with Polanyi’s ideas, this movement towards marketization was met with counter-movements – a number of spontaneous attempts to check the potentially catastrophic effects this dislocation would have. Owenism and Chartism, however, would fall short in Britain, and the working man’s dislocation and political exclusion gave him nothing to replace the loss of identity he once had. This was not the case on the Continent, for a number of reasons. For one, it happened some fifty years later. Already, then, the population was more prepared for such a change. Higher wages attracted people to towns where they felt elevated to a new state of being that was an improvement from before.[9] Critically, on the continent, there was a “rise in the social and political status of the labourer”, whereas the converse was the case in Britain[10]. What is the insight one draws in this distinction between the industrial revolution in Britain and the Continent? How is this relevant to labour markets? This observation illustrates that while a cultural catastrophe is not necessarily entailed in a systemic upheaval of the old system and creation of markets for “fictitious commodities”, what is absolutely inescapable is the consequences of market exposure. Polanyi himself recognised that the continent did not need protection from the industrial revolution, but rather “the continental worker needed protection… against the normal action of factory and labour market conditions”.[11] While in Europe this was achieved via legislation due to the earlier access of the vote, in Britain it was achieved through trade unions. But this comparatively abysmal transition to a fully industrialised society with the advent of the labour markets in Britain to the relatively smooth one on the continent provides more than just an opportunity to distil what is a possible consequence from a certain one. It ultimately reinforces Polanyi’s insights regarding the double movements. On the one hand, in Britain, the extremely forced commodification of labour and land via enclosure laws and poor law reform was not met with protections for the wellbeing of the labourer. On the other hand, on the continent the advent of industrialisation came hand in hand with protections for labourers from the effects of market forces. The differences in social protection amongst nations is crucial when considering Polanyi’s insights in the context of the European Union.

We have seen, then, precisely why Polanyi regards labour as a fictitious commodity and the potential consequences of the creation of the labour market. Additionally, we have also distilled the nature of the double movement; steps to disembed the economy met with concomitant attempts to re-embed it to a degree. Polanyi is most relevant in the context of the European Union when examining these particular insights in its context. The entire development of the EU can be seen as one big double-movement; an attempt on one hand to increase competitiveness by removing barriers to trade, and on the other to safeguard the social well-being of the individuals in the member states. As will be seen, this endeavour is heavily paradoxical and the balance is heavily tipped towards the former to the extent that any semblance of a double-movement essentially evaporates and we are left with pure marketization, particularly in the recent times of financial crisis. There are, however, caveats that Polanyi could not have possibly accounted for, due in large part to the layers and layers of machination of the functioning of the EU and how it relates internally to itself and externally outwith the EU. One is that, for all the assertion and explanation in Polanyi’s writings that marketization and deregulation, whilst debasing society provides on the whole economic growth, this has not been the case in the context of the EU and the financial crisis. Deregulation is having little to no effect in competitiveness (arguably the opposite). As we will see, however, Polanyi’s insights still apply once we extrapolate the insights regarding commodification of labour in relation to the EU.

Polanyi and the EU

Polanyi’s insights can be seen from the inception of the EU. The initial creation of the EU saw two spheres developed – the common market at the supranational level and the social levels which operated at a national level. In actuality, it was only one sphere whilst the other was simply left to the whim of member states. Already, then, we see echoes of Polanyi’s double movement. France and Germany (particularly France) at this stage wanted social considerations to be included as a precondition for industrial harmonisation. However, the Ohlin[12] and Spaak[13] reports quelled these notions. The notions themselves were brought upon genuine concerns; that not harmonising social standards would lead the economic state of countries to naturally pursue a “race to the bottom” that would pose a threat to countries with high wages and strong employment protections. This is the very essence of the nature of a labour market and the consequences of its creation as described by Polanyi, simply transposed into the context of the European Union. You have barriers to trade removed in the name of economic growth, met by the possibility of adverse effects for the labourers. Furthermore, Polanyi’s embeddedness reveals itself in the reasoning of Scharpf[14] when he describes the intrinsic nature of social policy to the state from which it originates. It can be argued in this sense any attempts to harmonise at a supranational level must therefore be doomed to fail; it certainly helps to explain why no serious attempt to do so was ever made. At any rate, this worry was dispelled by the Ohlin committee, the only social recommendation it made being that female worker pay be regulated at the European level. The committee argued against further social harmonisation by saying that exchange rates reflect economic activity, thus states with higher social protection had nothing to fear. As we will see later on, this does not prove to be the case indefinitely.

Thus it was that social protections were left to member states. If there was a phrase to characterise the following decades of social protection at the EU level, it would be “all talk, no action”. The social policy agreement of the 70s and the Single European Act of the 80s did not actually provide any binding rules regarding social protection. It was not until the Maastricht Treaty in 1992 that  there was a tangible establishment of these institutions in the EU, but even this had massive shortcomings.[15] Certainly now, it is believed to an extent that the European Social Model is all but gone[16], but it is arguable it ever existed in a real sense. This is something that Scharpf and Crouch[17] would contest.

Once Scharpf’s foresight inevitably came to pass in Greece, the legal constrictions of the EU were felt both on the side of the Greeks who wished to resist the impositions given by the ECB, and the Germans who did not wish to bear the burden of another nation. In the case of the former, since exchange rates were not capable of being changed and exiting the EU was not a favourable option to the creditors, they were forced to take the bailout plan. For the latter, the CJEU simply told those who brought the case that the Germans as a people did not have the right to refuse to shoulder the burden. Polanyi’s double movement, then, whilst not necessarily wholly due to labour markets themselves, can be seen to reach its full “annihilation” in this instance. The EU’s answer to the Greek crisis was to subject the labour force to the brunt of the cost by enforcing public bailouts and the continuation of the deregulation agenda – not the regulation of the financial market one surely would have expected at the start of the financial crisis. Of course, this has led to further social degradation.  When compared with Iceland’s antithetical response to the crisis the policies of deregulation and the economic efficiency, and fairness, of public bailouts is called into question.

It is here that the link is made between the turmoil of the EU’s economy, the position of the worker, and the position of the worker in Britain over a century ago that I made a point of referring to later. While it did not happen at first on the Continent, what happened in Britain in the 19th century is now the case for Europe. In a time where efforts are made to garner economic growth, the labour market is exploited and deregulated with virtually no power to the labourer in deciding their fate. Methods such as quantitative easing benefit the asset owning class. Even the open-method of coordination is extremely lacking for Scharpf.[18] Policy choices were kept national but agreed to be in view of a common goal with set indications and parameters for success. However, this is non-binding and requires voluntary cooperation, mirroring more or less any attempt to regulate labour standards. The goals set for the OMC in policy favour deregulation for the most part. As for why deregulation is pursued despite it clearly not being the answer; there is no one correct answer. It is a combination of factors that once again represents the caveats that Polanyi could not account for. Hill and Myatt[19]give a good brief account – that those who were profiting from deregulation were successful in lobbying for its continuance and further managed to influence public opinion. Indeed, this again mirrors the original way in which labour markets were created in Britain in the 19th century. What Scharpf states as the answer is as follows: “But what one might and should demand is a balancing of market-enhancing and market-correcting concerns at the European level, instead of the lexicographic ordering that presently prevail”.[20] Scharpf does not believe this is impossible, although his evidence to support this view is extremely niche.[21]

Overall, it can be seen that Polanyi’s insights are disturbingly pervasive in the development of the European Union. In many ways, the dire consequences of the commodification of labour are worse than he envisioned in the worst-case scenarios where it is not met with a counter-movement. In the case of the EU, the labour market transitioned from something that was subject to a nation’s own social protection devices to an entity which superseded them. For decades, marketization continued at the supranational level whilst no counter-movement in social protection at that same level was made. Devoid of the necessary tools to protect themselves, the member states unwittingly carried on until the day that their creation of a currency union would reveal the devastating consequences of failing to regulate properly. The ultimate irony is that despite the known causes of such consequences, deregulation of the labour markets is still always pursued as the answer. Indeed, Polanyi’s annihilation of society is abundantly clear; the current political state of the EU is evidence enough.

 

 

[1] Polanyi, K – The Great Transformation pg 137, 1957 Beacon Press, 25 Beacon Street Boston Massachusetts

[2] Ibid.

[3] TGT pg 171

[4] Ibid.

[5] Ibid.. pg 173

[6] Ibid. pg 172

[7] Ibid. pg 173

[8] Ibid. pg 175 – “in statu nascendi” (in reference to the state of the working class)

[9] Ibid. pg 182

[10] Ibid. pg 184

[11] Ibid. pg 184

[12] http://aei.pitt.edu/6508/1/000432_1.PDF

[13] http://aei.pitt.edu/995/1/Spaak_report.pdf

[14] F Scharpf, ‘The European Social Model: Coping with the challenges of diversity’ (2002) MPIfG working paper No. 02/8, section 3

[15] P Davies, ‘Market Integration and Social Policy in the Court of Justice’ (1995) 24 Industrial Law Journal pg 49

[16] Alain Supiot, ‘Towards a European policy on work’ (2013)

[17] C Crouch, ‘Entrenching neo-liberalism: the current agenda of European social policy’ in N Countouris and M Freedland (eds), Resocialising Europe in a Time of Crisis (Cambridge 2013)

[18] Ibid Section 4

[19] Postscript: a case study on the global financial meltdown,’ by Hill and Myatt, The Economics Anti-Textbook pg 262-263

[20] F Scharpf, ‘The European Social Model: Coping with the challenges of diversity’ (2002) MPIfG working paper No. 02/8, section 4.4

[21] Gebauer et al. 2001

 

A New Hope for Climate Change Litigation: Holding Corporations to Account for their Greenhouse Gas Emissions

February 16, 2017

In this article, Bethen Gilroy (3rd Year LLB ),  explores the difficulties faced when seeking to hold large corporations to account for their role in climate change. Particular attention is paid to the recent case of Lliuya v RWE, where a peruvian farmer sought to challenge the effects of RWE's greenhouse gas emissions in Peru. The case signifies a considerable advancement in climate change litigation.

A New Hope for Climate Change Litigation: Holding Corporations to Account for their Greenhouse Gas Emissions

In 1988 the Intergovernmental Panel on Climate Change (IPCC) was established. Tasked with analysing and assessing climate change - and its impacts on a global scale - the move signified worldwide recognition that climate change was a real issue requiring immediate attention. Today, climate change is considered to be the most significant threat to the environment. A key factor responsible for accelerating climate change is the continuous increase of greenhouse gas emissions into the atmosphere. Since 1970, the human contribution to these gasses has risen by more than 70%,[1] with leading emitters found within the industry and agriculture sectors . In fact, a recent study published in 2013 suggests that just 90 corporations are responsible for producing 63% of cumulative global emissions to date.[2]

As such, it is clear that a small number of corporations are accountable for the majority of global emissions. However, little has been achieved in recent years forcing them to examine, and if necessary alter, their individual contributions. From a legal stand point, one of the most effective means of enforcing corporate responsibility with regards to climate change is through the courts. Yet, countless cases raised all over the world have seen next to no success. There remains one potent obstacle that litigants have yet to overcome - to provide clear evidence linking one individual emitter to a specific consequence of climate change in another region. What claimants lack is standing.

However, recent research now allows for an individual’s emissions to be distinguished in the atmosphere, thus marking a new era with regards to climate change litigation. It can now be shown how an individual corporation’s emissions have not only had an impact on the environment, but that they are also largely responsible for accelerating climate change. The question now remains as to whether the courts will accept this scientific development as a legal basis for bringing a claim.

 

Before analysing the role of individual corporations, it is necessary to establish exactly what ‘climate change’ is. Put simply, climate change is defined as a long-term variation in the average weather and temperature of the world at large.[3] While the Earth’s climate is constantly changing, it is a gradual process that should take place over centuries. Instead, the human impact on the atmosphere has resulted in a quickening of climate change with dangerous consequences. In less than 100 years, the average temperature of the Earth has risen by nearly 1°C[4]. Ultimately, with increasing temperatures comes higher sea levels - which have already risen by 19cm since 1900. As such, not only are entire islands at risk of being reclaimed by the sea, but the number and severity of storms and droughts are also increasing.

It is no secret that large corporations in the oil and gas industry are responsible for contributing unparalleled levels of greenhouse gas emissions into the Earth’s atmosphere. Therefore, suing these corporations for their emissions is not uncommon. For years, individuals have sought recourse through the courts to hold them accountable, however, the majority of cases have been unsuccessful. The case of Native Village of Kivalina v. Exxon-Mobil Corp[5] effectively demonstrates the challenges that individuals have faced.

In 2009, the village of Kivalina launched a federal lawsuit[6] against 22 oil, coal and power companies (including Chevron, Exxon-Mobil and Shell). The basis of the action was that the large quantity of greenhouse gas emissions produced by the defendants had a significant impact on global warming. The effects of climate change meant that their village was now on the brink of destruction, due to a significant decrease in protective sea ice and corresponding increase in flooding.  The sharp rise in the severity of storms meant that the village would have to relocate within six years. As such, the plaintiff’s sought monetary damages of up to $400 million to fund this relocation.

The defendants main contention revolved around the concept of standing. They asserted that the plaintiffs could not prove that the specific effects of climate change on the village were linked to their actions, and as such the village did not have standing to raise a claim.

The court of first instance decided in favour of the defendants owing to the fact that it agreed the plaintiffs lacked standing[7]. As a result, Kivalina appealed the decision to the Ninth Circuit. Similarly, the Ninth Circuit decided in favour of the defendants[8]. The court did not discuss the issue of standing, instead focusing its reasoning on the federal common law and the theory of public nuisance.

The judgement holds that if the plaintiffs were to sue the defendants successfully, they would need to pursue a public nuisance claim. The reasoning outlined that public nuisance “requires proof that a defendant’s activity unreasonably interfered with the use or enjoyment of a public right and thereby caused the public at large substantial and widespread harm”.[9]

Relying on the earlier judgement of American Electric Power Co v Connecticut,[10] the court held that the plaintiffs did not have a justiciable claim, owing to the displacement of federal common law by the Clean Air Act.[11] As such, the court did not deem it necessary to discuss whether Kivalina had standing.

However, of significant interest is the concurring opinion provided by Judge Philip M. Pro, which has been cited in subsequent cases. His discussion examines the concept of standing in detail. The opinion went as follows:

“By Kivalina’s own factual allegations, global warming has been occurring for hundreds of years and is the result of a vast multitude of emitters worldwide whose emissions mix quickly, stay in the atmosphere for centuries, and, as a result, are undifferentiated in the global atmosphere. Further, Kivalina’s allegations of their injury and traceability to Appellees’ activities is not bounded in time. Kivalina does not identify when their injury occurred nor tie it to Appellees’ activities within this vast time frame. Kivalina nevertheless seeks to hold these particular Appellees, out of all the greenhouse gas emitters who ever have emitted greenhouse gases over hundreds of years, liable for their injuries.”[12]

Judge Pro ultimately agreed with the decision of the district court that Kivalina lacked standing. Given that the village could not provide plausible evidence for distinguishing the defendants’ emissions in the atmosphere, they were unable to prove that their actions were directly attributable to the severe effects of climate change on their environment.

The case of Kivalina effectively illustrates the main hurdle faced by claimants when seeking to sue large corporations. Structuring a case in a way that clearly assigns blame to corporations who emit huge quantities of greenhouse gasses is virtually impossible. Greenhouse gasses are continuously released into the atmosphere, with no way of differentiating between them. Every person, therefore, has had some role to play, thus making it difficult for claimants to hold large emitters solely to account. With the burden of proof falling on claimants, it is no wonder why so many cases have been unsuccessful.

In recent years, pioneering research has managed to counter the difficulty of assigning blame. Two studies of note are that of Richard Heede and Friends of the Earth, which - when analysed together - provide a clear basis for outlining an individual entity’s contribution to climate change.

In 2013, a groundbreaking study was published by Richard Heede detailing how 90 companies can be held primarily accountable for the ‘climate crisis’ of recent years.[13] The companies range from investor-owned firms – household names such as Chevron, Exxon-Mobil and BP – to state-owned and government-run firms. Collectively, these corporations are responsible for contributing nearly two-thirds of the greenhouse gas emissions released into the Earth’s atmosphere since 1854.[14]

In order to reach this conclusion, Heede studied the annual production reports of the corporations before calculating the carbon content of each individual entity, based on their production of coal, oil and natural gas. He did this using internationally established guidelines on carbon factors as a benchmark for assessing the individual responsibility of each corporation.[15]

Chevron was the leading emitter among investor-owned companies, causing 3.5% of greenhouse gas emissions to date, with ExxonMobil not far behind at 3.2% and in third place, BP, causing 2.5%.[16] As such, a small number of decision makers are responsible for more than half of the worlds greenhouse gas emissions. In fact, the top 20 corporations identified in the study are collectively responsible for 29.5% of global emissions.[17]

What sparked Heede’s research was a previous study conducted with Friends of the Earth. In that report, the individual impact that just one of these corporations has had on the environment was analysed. The study examined Exxon-Mobil’s climate footprint since 1882 and translated the data into how they individually contributed to climate change.

As one of the biggest corporations within the global oil industry, Exxon-Mobil produces an average of 4.5 million barrels of oil every day.[18] Looking at their individual carbon production, Exxon-Mobil alone released almost double that of the entire United Kingdom into the Earth’s atmosphere in 2002.[19] The study uncovered that Exxon-Mobil’s emissions have contributed up to 3.7% of global temperature change since 1882, and 3.6% of the total sea level rise.[20] Even if all of Exxon’s emissions were to stop today, past emissions would still continue to have an effect on climate change up until the year 2200.[21]

It is evident that a new chapter has begun for climate change litigation with regards to holding corporations to account. Following Richard Heede’s research, it is now possible to single out the largest emitters. What remains is whether the courts will accept this as sufficient evidence to give future claimants standing. This is what a Peruvian farmer hoped to achieve in his legal bid against German energy company, RWE. Lodged before the regional court in Essen, the case has been brought by one man - Saúl Luciano Lliuya - who wishes to sue RWE for the impact of their emissions on global climate change.[22] The action is the first of its kind in Europe, thus the eventual conclusion of the case will set a clear precedent.

 

In 2014, the IPCC issued a report detailing how tropical glaciers located in the region of Latin America - specifically those in Peru - are at a heightened risk of retreat, due to the increase in global temperature.[23] The situation is expected to deteriorate, with temperatures in Central America predicted to increase by 1.6 degrees this century.[24] A severe consequence of melting glaciers is the increased risk of flooding to nearby towns and villages - a risk which has now become a reality for Lliuya. His home is situated next to Lake Palcacocha in Peru, which is at the foot of a rapidly declining glacier. The lake’s volume has increased eight times over as a consequence of the rise in glacial melt within the region. As a result, it is at a heightened risk of bursting its banks. If the lake were to overflow, the flood would reach the nearby city of Huaraz in just over one hour.[25]

Lliuya has based his claim on the 2013 report issued by Richard Heede, where RWE were placed among the top 90 corporations fuelling climate change. According to the report, RWE’s contribution to the cumulative total of greenhouse gas emissions stands at 0.47% - making it Europe’s largest emitter.[26]

The homes and lives of 50,000 people are at stake, meaning that measures need to be taken to reduce the risk of flooding. Several remedies are available to the people of Huaraz - but for a high price. Lliuya has therefore asked that RWE contribute €17,000 towards the cost of draining the lake and installing a warning system alerting nearby towns if a flood were to be imminent. The compensation sought amounts to 0.47% of the total cost to install the protective measures, correlating to the percentage of RWE’s contribution to climate change.

In response to Lliuya’s claim, RWE alleged that he had no legal basis to bring such an action. In a similar vein to the case of Kivalina, the company asserted that no definitive link tying their greenhouse gas emissions to the risk of flooding in Peru could be established.[27]

Rendering its judgement in December 2016, the court found in favour of RWE.[28] Their reasoning was based on the concept of legal causality. While Heede’s research has given plaintiff’s the means to provide solid evidence establishing a scientific link between a corporation’s emissions and climate change, there still remains the obstacle of whether it is legally viable. Lliuya intends to appeal the decision to the High Court in Hamm.

While Lliuya lost the first battle in his challenge against RWE, his legal bid is far from over. If his claim ends up being successful, a paradigm shift in how litigants can challenge corporations through the courts would ensue. In time, its precedent could see all big polluters having to pay their share of the cost in repairing the damage caused by climate change. The case of the Peruvian farmer is a crucial stepping stone in progressing cases of its type. The science supporting legal claims is becoming stronger and more transparent, consequently, every action sees a definitive step forward in how to make a legal bid successful.[29]

It is clear that while progress is being made, there remains a long way to go before corporations are effectively held to account for their actions. When comparing the impacts of greenhouse gas emissions on the environment to other forms of destruction - such as river pollution or deforestation - identifying those responsible is, perhaps, more blurred[30]. This inability to definitively provide courts with a concrete link between a flood in one part of the world and the emissions of a corporation in another, is why individuals have seen limited success. Without standing, litigants cannot establish that they have suffered harm.

However, Richard Heede’s report provides a new hope. His research has allowed for key contributors of global greenhouse gas emissions to be identified. To date, those who have suffered the consequences of climate change have been unable to hold those largely responsible to account. Therefore, this groundbreaking study - at the very least - acts as a stepping stone to providing them with the relief they seek.

From a legal standpoint the question remains as to whether courts will accept this scientific development as a basis for establishing standing. It is a common belief that it is the role of governments to address climate change, and while this may be largely true, more needs to be done.[31] The evolution of climate change litigation in recent years suggests that, in the near future, legal challenges against corporations will begin to succeed. If this is the case, significant improvements in the level of global greenhouse gas emissions will be made. The more cases that become successful against individual corporations, the more incentive they will have to reduce their emissions and take a proactive role in the global effort against climate change.

The future importance of the case of the Peruvian farmer should not be underestimated. It is the first legal challenge based on Heede’s research, thus the eventual conclusion of the case will outline just how much farther litigants will have to go to succeed. At the very least, however, the case has attracted significant public attention. Therefore, regardless of the outcome, Lliuya has achieved one thing. He has brought the failure of large entities in reducing their emissions into the spotlight. This alone will hopefully drive decision makers to change the way in which they conduct business, instead focusing on what truly matters - their individual responsibility towards combating climate change.

 

[1] IPCC, “IPCC Fourth Assessment Report: Climate Change 2007”, Intergovernmental Panel on Climate Change, (2007), chapter 2, located at: http://www.ipcc.ch/publications_and_data/ar4/syr/en/spms2.html

[2] R. Heede, “Tracing Anthropogenic Carbon Dioxide and Methane Emissions to Fossil Fuel and Cement Producers”, Springer Link, (22nd November 2013)

[3] D. Stillman, “What is Climate Change?”, NASA Educational Technology Services, (4 September 2015)

[4] J. Walton, “Six graphics that explain climate change”, BBC News, (30th November 2015), located at: http://www.bbc.co.uk/news/resources/idt-5aceb360-8bc3-4741-99f0-2e4f76ca02bb

[5] Native Village of Kivalina v. ExxonMobil Corp. [849 (9th Cir. 2012)]

[6] ibid.

[7] Native Village of Kivalina v. ExxonMobil Corp. [863 N.D. Cal. (2009)]

[8] Native Village of Kivalina v. ExxonMobil Corp. [849 (9th Cir. (2012)]

[9] ibid. at 11652

[10]  American Electric Power Co. et al. v Connecticut et al. [564 U.S. (2011)]

[11] [849 (9th Cir. (2012)] at 11657

[12] ibid. at 11675

[13] R. Heede, “Tracing Anthropogenic Carbon Dioxide and Methane Emissions to Fossil Fuel and Cement Producers”, Springer Link, (22nd November 2013)

[14] ibid.

[15] Intergovernmental Panel on Climate Change, IPCC guidelines for National Greenhouse Gas Inventories, (2006), vol. 3

[16] R. Heede, Op Cit, (2013)

[17] ibid.

[18] Friends of the Earth, “Exxon’s Climate Footprint: The Contribution of Exxon-Mobil to Climate Change since 1882”, Friends of the Earth International, (January 2004), page 8

[19] ibid.

[20] ibid, page 13

[21] ibid.

[22] D. Collyns, “Peruvian farmer demands climate compensation from German company”, The Guardian, (16th March 2015), located at: https://www.theguardian.com/environment/2015/mar/16/peruvian-farmer-demands-climate-compensation-from-german-company

[23] IPCC, “Climate Change 2014: Impacts, Adaptation, and Vulnerability”, IPCC, (2014), page 1520, located at: http://www.ipcc.ch/report/ar5/wg2/

[24] ibid, page 1502

[25] D. Rivas and others, “Inundation Modelling of a Potential Glacial Lake Outburst Flood in Huaraz, Peru”, University of Texas, (March 2014), page 39

[26] L. Friedman, “Claim blaming utility for devastating glacier melt in Peru may set landmark legal precedent”, E&E News, (6th April 2015), located at: http://www.eenews.net/stories/1060016270

[27] G. Reuter, “Peruvian farmer sues German energy firm RWE”, DW News, (11th November 2016), located at: http://www.dw.com/en/peruvian-farmer-sues-german-energy-firm-rwe/a-36506880

[28] Lliuya v RWE [Landgericht Essen (Az. 2 O 285/15)] (16th December 2016)

[29] L. Friedman, Op Cit, (2015)

[30] R. Heede, Op Cit, (2013)

[31] R. Cox, The Liability of European States for Climate Change, Utrecht Journal of International and European Law, (2014), pages 125–135

 

 

Can the concept of Human Flourishing justify Land Reform in Scotland?

February 16, 2017

In this article, Andrew Mack (Diploma in Professional Legal Practice) examines Alexander's theory of Human Flourishing, and considers whether it can be used as a basis for justifying Land Reform in Scotland.

Can the concept of Human Flourishing justify Land Reform in Scotland?

 

The state should be empowered, and may even be obliged, to compel the wealthy to share their surplus with the poor, so that the latter can develop the necessary capabilities [to flourish].[1]

 

Land reform has been in full swing in Scotland over the past two decades. Indeed, it has been a primary concern of the Scottish Parliament since it was first formed in 1999. The Land Reform (Scotland) Act 2003 was a key statute in the early stages of land reform. It introduced a statutory “right to roam” and further provided two controversial Community Right to Buy Schemes. The Land Reform (Scotland) Act 2016 has recently added another, perhaps even more controversial, Right to Buy Scheme, to the repertoire of Schemes already available.

Land reform has long suffered accusations of undermining the rights of landowners and transferring too much power into the hands of non-owners. However, land reform, as draconian as it might appear, may not be without its justifications.  This article will firstly set out Gregory Alexander’s concept of Human Flourishing as a backdrop against which land reform in Scotland will be examined. It will then be determined if the two main thrusts of land reform in Scotland, namely access rights and the Right to Buy Schemes, can be justified under this model or if they lack any reasonable rationale. 

 

The Social Obligation Norm and Human Flourishing

Criticism has been aimed at land reform, which has been viewed as unjust due to the onerous obligations it places on landowners. Following the land reform Acts, landowners are now required to allow the public onto their land,[2] and in certain cases they are also required to give up their interest in the land that they own.[3] At first sight it may seem difficult to justify these demanding reforms.

A possible justification for land reform is that landowners have an obligation to share their land with others. This concept forms the basis of Gregory Alexander’s social obligation theory of Human Flourishing. Alexander argues that “all individuals have an obligation to others in their respective communities to promote the capabilities that are essential to human flourishing.”[4] For landowners, this means that they are burdened with the duty to share their land with others if it contributes to, and facilitates the flourishing of, the community as a whole.

So, what is the meaning of Human Flourishing? Alexander’s explanation is that it allows “individuals to live lives worthy of human dignity.”[5] Two of its key aspects are life in community with others and access to certain kinds of resources.”[6] Alexander takes the view that human beings are interdependent, and require one another in order to live a fully developed life.  A great deal of emphasis is placed on the importance of community, with Alexander going so far as to say that it “comprises humanity.”[7] By being part of, and contributing to, a community, humans have the best chance to develop their capabilities. Individuals will also have freedom over various aspects of their life, including health and education. Furthermore, from birth to death we learn from the people around us. It is for these reasons that Alexander argues that everyone has an obligation to contribute to their community, so that everyone in it has an equal chance of developing their capabilities, or, in other words, flourishing.

Not everyone will feel the need or desire to contribute to their community. In such circumstances, is it right that the state compels an individual to give up surplus resources in order to allow someone else to flourish? This is not a novel question. For example, taxation laws require the redistribution of surplus resources for the benefit of others. In addition, compulsory purchase law allows the state (which can be viewed as the “community”) to force landowners to sell land if it is needed to benefit the public good. The public interest may trump the private right of ownership where, for example, the construction of a new road is required. Land reform can therefore be viewed as a more recent method employed by the state to compel individuals to contribute to the wellbeing of others.

The focus of this article will now turn to determining whether or not land reform in Scotland can be justified against this backdrop of Human Flourishing.

 

Access Rights

One of the two main pillars of land reform introduced by the Land Reform (Scotland) 2003 Act was a statutory “right to roam.” [8] The 2003 Act allows anyone to enter onto most private and public land in order to cross that land, or for the purposes of recreation and education.[9] It should be noted that this right to roam does not include the use of motorised vehicles.[10] Provision is made to exclude certain land from the scope of access rights. For example, any land with a building on it or a sports field does not fall under the scope of access rights.[11] Furthermore, land required by the owner to have reasonable privacy and enjoyment of their land is also excluded.[12] You cannot, therefore, enter the garden of someone’s house[13] without their permission. A person will have the benefit of these access rights so long as they are exercised in a responsible manner.[14] Landowners also have burdens placed on them in respect of these access rights, as they must only use the land in a manner that does not interfere with the access rights.[15]

Prior to the introduction of these access rights, private land in Scotland could only be lawfully crossed if there was a public right of way over it, and this could only be for the purpose of travelling on a fixed route, from which no deviation is permitted, from one public place to another. The access rights provided by the 2003 Act vastly increase the range of land that can be lawfully accessed. This is a rather onerous burden for landowners of large estates, as they must now allow the public onto their land, where they may carry out many different activities. While the Act does not change the existing duty of care that a landowner owes to individuals who enter their land,[16] it has been pointed out that the increased amount of access taking could result in a higher risk of litigation.[17]

Access rights, and the concomitant onerous obligations, clearly conflict with the right of a landowner to exclude others from their land. As discussed above, access to certain resources is one of the main aspects of Human Flourishing. Access rights allow everyone to enter onto land that is surplus to the amount that is needed for the landowner’s reasonable enjoyment of that land. It may therefore be possible to justify the onerous right to roam with reference to Human Flourishing.

Alexander places a great deal of emphasis on the importance of recreation, going so far as to say that it is required by people for “living lives worth living.”[18] The fact that the 2003 Act specifically states recreation as a reason for entering onto land suggests that the Scottish Parliament shared the view that access to recreation is a very important aspect of human lives. The striking contrast of the current law relating to access rights for the purpose of recreation compared with its state prior to the passing of the 2003 Act is highlighted by the words of Lord Justice-Clerk Hope: “There is no case whatever in which a right to wander over, to rest or to lounge upon the ground of a private proprietor, under the new name of recreation, has ever been sustained.”[19] The Scottish Outdoor Code provides examples of recreation, including walking, picnics, and kite flying.[20] As Lovett puts it, access rights in Scotland “provides the people of Scotland with a fuller range of opportunities to engage their landscape for recreation and education.”[21]

What is important about these recreational activities is that, while they are perhaps relatively simple, the access taker does not need to pay a price to the landowner to partake in them. This provides recreational opportunity to all wealth classes. This concept goes straight to the centre of Human Flourishing, which has the ideal of surplus resources owned by someone else being put to use in order to benefit the wider community. The access rights introduced by land reform in Scotland, by allowing everyone access to recreation, therefore increases the proliferation of capability development. This, it is submitted, is a very strong justification for the statutory right to roam.

The social aspect of Human Flourishing also provides justification for land reform. Access rights allow many people, who might otherwise have never met, to engage with one another in a public setting. This further allows the development of capabilities, as it provides more opportunity for the members of a community to talk to and learn from one another.

So, it can be said that access rights are justified as a result of the benefits that the public receive. However, is it justifiable to the actual owners of the land that the access is being taken on? It is submitted that it is. The 2003 Act did not completely remove a landowner’s right to privacy. As mentioned above, there is provision to exclude land that is necessary to the landowner’s enjoyment of their land.  It is only land surplus to their needs as an individual that is affected.

Judicial discretion also provides scope for justifying access rights to landowners. The wording of the 2003 Act has been criticised as being open textured, leaving the application of the Act subject to individual court decisions.[22] This criticism was highlighted in Gloag v Perth & Kinross Council,[23] where Sheriff Fletcher found in favour of the pursuer and allowed a substantial area of land surrounding the house to be closed off to the public. It was decided that weight should be given to the type of landowner buying such an expansive estate, and that they require extra security and privacy.[24] This was a deviation from a strict application of the Act, which only offers provision allowing the type of land to be considered,[25] not the type of landowner. However, it may be that a more open textured approach to land reform could be favourable as it allows more flexibility where individual cases require it. Security and privacy are also aspects of Human Flourishing, and should be considered equal to recreational access. It may well be that a certain individual requires increased privacy in order to live a “dignified human life.” It is therefore submitted that judicial discretion allows a better balance to be struck, which helps promote Human Flourishing and justify the existence of access rights to landowners.

 

Community Rights to Buy

The second main pillar of land reform are the Community Right to Buy Schemes. Whereas access rights are concerned with granting individuals the right to access surplus resources (in this case land), the Right to Buy Schemes, on the other hand, relate to granting communities control over the governance of the land on which they live.

The 2003 Act introduced the Community Right to Buy[26] and Crofting Community Right to Buy Schemes.[27] The Land Reform (Scotland) Act 2016 has added a further Community Right to Buy to Further Sustainable Development.[28] As the newest of these Schemes, and the one that has the widest application and places the most onerous burdens on landowners, it is it which will take the focus of the present work.[29]

The Community Right to Buy to Further Sustainable Development is not merely an enhancement of the Schemes that existed prior to the passing of the 2016 Act; rather, it is its own entity. This new Scheme will give communities[30] the right to have a landowner’s interest in the land transferred to them, following Ministerial consent, whether the landowner is willing or not. This Scheme applies to all land in Scotland other than excluded land.[31] The Scottish Ministers will require the transfer of the land where it is likely that it will result in the sustainable development of that land.[32] The transfer of the land must be the only practicable way of achieving sustainable development,[33] and withholding consent has to be likely to result in harm being caused to the community seeking to exercise this right.[34] Sustainable development is not currently defined, which, as discussed below, has drawn criticism to the Scheme. 

Can this Right to Buy Scheme, bearing in mind that it can force the landowner to sell their land to a community, be justified, or does it simply undermine the right of ownership with no sufficient rationale?  Community, and the important role it plays in an individual’s life, is of central importance to the Human Flourishing model. The community should be provided with the resources it needs to benefit all of its members. This Right to Buy Scheme, if applied properly, endeavours to transfer surplus land out of the hands of the wealthier members of society and into the ownership of the poorer ones, so that they have just as much of an opportunity to develop their capabilities. This would fulfil the duties that the landowner has to the community of which he is a member. This would be an acceptable justification, provided that there is a transparent and equitable process in place.

Unfortunately, the Community Right to Buy to Further Sustainable Development does not have such a process. It may be exercised for reasons that fall short of an increased benefit to the wider community as a result of the uncertainty that flows from the meaning of “sustainable development.”[35] This is unsatisfactory as landowners can be compelled to sell their interest in their land. It would be difficult to justify this Scheme if it transpired that land was being compulsorily acquired by communities that did not end up benefiting from owning that land. If it was more clear what sustainable development entailed, then it would be easier to say that this Right to Buy Scheme is justifiable with reference to the central Human Flourishing idea of benefitting the community. As it stands, however, this recent land reform development does not guarantee that the community exercising this right would in fact be benefited, and in such a case, the ideals of the Human Flourishing model would not apply.

 

Conclusion

Land reform has placed heavy burdens on landowners. They are now obliged to allow access onto their surplus land whereas they once had a right to exclude others. Furthermore, in certain circumstances, landowners are required give up their interest in land entirely. One could be forgiven for thinking, on first sight, that these changes are indefensible wrongs. However, the vast benefits that are passed directly onto the wider population of Scotland brings to the forefront a justification. This article has taken the principles of Alexander’s theory of Human Flourishing and determined that, overall, it forms a reasonable and just basis for the changes in the law that have come about as a result of land reform. One aspect identified as perhaps lacking in justification in its current form is the Community Right to Buy to Further Sustainable Development due to the uncertainty that flows from the term “sustainable development.” It requires definition before it can be determined if the relevant Right to Buy Scheme can be justified under the principles of Human Flourishing.

In light of the benefits that land reform has brought to the majority of people living in Scotland, it is reasonable to say that the state should be empowered to require landowners with surplus land to share that surplus. Hopefully, as the land reform process continues in Scotland, the ideals of the model of Human Flourishing will continue to be given effect, so that everyone in Scotland is given a better opportunity to develop their individual capabilities, and to flourish.

 

 

[1] Gregory S. Alexander “The Social-Obligation Norm in American property law” (2009) 94(4) Cornell Law Review, page 746

[2] See Access Rights, discussed below

[3] See Community Rights to Buy, discussed below.

[4] Alexander “The Social-Obligation Norm in American property law”, page 745

[5] Ibid. page 748

[6] Ibid. page 749. These aspects are specifically discussed in the context of land reform below.

[7] Ibid. page 761

[8] Land Reform (Scotland) Act 2003 Part 1

[9] Ibid. s1. Provision is also made for the “carrying on, commercially or for profit, an activity which the person exercising the right could carry on otherwise than commercially or for profit.” This has the effect of allowing access taking for reasons such as paid tours of the land, without the tour giver being required to pay the land owner.

[10] Ibid. s9 

[11] Ibid. s6

[12] Ibid. s6(1)b(iv). The extent to which the land surrounding a private dwelling should be excluded is difficult to determine. See the discussion of Gloag v Perth & Kinross Council below. 

[13] The Scottish Outdoor Access Code offers some guidance on this issue at paras 3.13-3.17.

[14] Land Reform (Scotland) Act 2003 s2.

[15] Ibid. s3(1)a)

[16] Ibid. s5(2)

[17] G.L. Gretton and A.J.M. Steven, “Property, Trusts and Succession”, 2nd edn. (London, 2013), para 18.10

[18] Alexander “The Social-Obligation Norm in American property law”, page 806

[19] Dyce v Hay (1849) 11 D. 1266.

[20] The Scottish Outdoor Access Code, para 2.7

[21] John A. Lovett, “Progressive property in action: the Land Reform (Scotland) Act 2003” (2011) 89 Neb. L. Rev. 301, page 778

[22] Ibid. page 790

[23] 2007 SCLR 530

[24] Ibid. at para 57

[25] Land Reform (Scotland) Act 2003 s7(5)

[26] Ibid. Part 2

[27] Ibid. Part 3

[28] Land Reform (Scotland) Act 2016 Part 5. At the time of writing, this Scheme is not in force.

[29] For a detailed discussion of the Right to Buy Schemes introduced by the 2003 Act, see Malcom Comb, “Part 2 and 3 of the Land Reform (Scotland) Act 2003: a definitive answer to the Scottish land question?” 2006 (3) Juridical Review 195

[30] s49 contains the definitions of Community in relation to this scheme. A community may be, for example, a company which contains the scope of the community in its articles of association.

[31] Land Reform (Scotland) Act 2016 s46(1). Excluded land includes land on which an individual has their home, and land owned by the Crown.

[32] Ibid. s56(1)a)

[33] Ibid. s56(2)c)ii

[34] Ibid. s56(2)d)

[35] While it was said by Lord President Gill in the case of Pairc Crofters Ltd v Scottish Ministers [2012] CSIH 96, that sustainable development is in “common parlance”, this does not shed any light on the exact meaning of the term. 

 

Assisted Reproduction: Is it Appropriate for the Law to Intervene?

February 16, 2017

In this article, Anna Nelson (4th Year LLB ), looks at whether the use of Artificial Reproductive Technologies justifies moving the act of reproduction out of the private sphere and into the public one, thus allowing for regulatory intervention.

Assisted Reproduction: Is it Appropriate for the Law to Intervene? 

 

Personal medical decisions are largely considered to be individual in nature. For this reason, the law generally tends not to intervene in medical matters, however assisted reproduction is subject to arguably intense regulation.  It must thus be asked what about assisted reproduction is so notably different so as to warrant this intervention. Natural reproduction is seen by most as an inherently private matter with little justifiable scope for legal

intervention, however, legal intervention within the realms of what we understand to be assisted reproduction is a more contentious issue.  The central question in this article will be whether there is sufficient justification to support the regulatory approach of the UK, which brings assisted reproduction into the public sphere while leaving natural reproduction unregulated.

 

 

The Law: An Overview

The UK is not alone in singling out reproductive medicine as an area requiring regulatory concern, however, UK regulation in this area is considered to be amongst the world’s most comprehensive.[1]  The Human Fertilisation and Embryology Authority (HFEA) was established by the Human Fertilisation and Embryology Act 1990, following the Warnock Commission’s report on matters pertaining to assisted reproduction.  The HFEA is designed to act as an impartial body, with the primary purpose of monitoring and licensing fertility clinics and embryonic research.  In 2008 an updated Human Fertilisation and Embryology Act was passed; this retained the same framework and primary purpose, whilst attempting to update and modernise some specific provisions. 

When considering whether seeking medical assistance in reproduction takes us outwith private realm and into the public sphere, there are a number of contrasting views and moral and ethical standpoints which must be assessed and evaluated in light of the UK’s regulatory approach.

 

Reproduction: An Inherently Private Matter?

                                                                                                   

Some regard any intervention in assisted reproduction as simply wrong on the basis that reproduction is, and ought to remain, an inherently private matter. Those who subscribe to this view often suggest that deregulation of assisted reproduction is the only approach which can adequately reflect the appropriate role of the State in this intimate area.[2]    However, there are many who disagree with this proposition.  The most radical disagreement is voiced by Dillard who describes procreation as the ‘antithesis of the personal’.[3]  This strong assertion stems from his belief that the creation of another person changes our legal relationships and creates new legal obligations to a greater extent than any other act does, and thus cannot be protected by privacy.[4]    Another attack on the proposition that assisted reproduction must remain a private matter is that the area of reproduction as a whole is actually not as free from legal ‘interference’ as some suggest.  This can be seen by the fact that an non-therapeutic sterilisation of a person with incapacity must be judicially approved. This can be seen to demonstrate that protection of the patient can provide sufficient justification for interference with the privacy of reproductive matters, especially in cases where a third party (generally a doctor) is involved.  

 

A final point raised specifically against the privacy of assisted reproduction is the impact this has on public services.  There is a greater risk of dangerous multiple pregnancies when reproductive techniques are applied,[5] and English notes that the NHS takes on the ‘financial burden’ of dealing with these.[6]  Thus, given the impact that assisted reproduction can have on public services, in a way not generally caused by natural conception, it can be suggested that these techniques must appropriately be brought outwith the realm of the private and regulated in order to control their financial impact.  

 

Whilst clearly rejecting the opinion that deregulation is the only appropriate step, the system in the UK nonetheless strikes an appropriate balance in this matter.  It focuses on licensing clinics, with a view to ensure safety.  Thus, it revokes reproductive privacy only when aiming to ensure that minimal medical harm occurs to patients, and resultantly ensuring that the cost of any medical mishaps in minimized.

 

 

Procreative Liberty: Should this Always Prevail?

 

The primacy of procreative liberty is often used to assert states ought not interfere with assisted reproduction.  Many argue that this is a principle embedded in ‘any democratic culture’[7] and that the denial of this based on what people may disapprove of, short of the existence of any actual harm, would amount to allowing ‘tyranny of the majority’,[8] which is an ideology incompatible with today’s rights-based society.  For this reason, some believe that only deregulation adequately respects the liberties of citizens.[9]  There is a slightly milder view expressed by some commentators, such as Robertson, that as reproductive autonomy is a ‘widely recognized prima facie right’ it ought not be limited ‘except for very good reason’.[10]  This acknowledgement that interference may be justified strikes a good balance, and thus it must be evaluated whether the reasons espoused for inference attain the standard required for justification.

 

Generally, the British regulatory system is considered to be a facilitative one which arguably recognizes the importance of procreative liberty.  It is permissive - it allows rather than prohibits access to assisted reproduction, stepping in only to license clinics and try and ensure safety for both service users and doctors.  Thus, a balance is struck where a person still has the liberty to access and chose from a number of techniques, while attempting to ensure safety.  

 

The Welfare Justification: A Consistent Principle?

 

It is generally accepted that the law can intervene to protect the welfare of the patient, but a more contentious question arises in procreative matters: can the welfare of the future child act as a justification for intervention?  The protection of subsequent offspring was one of the major reasons established by the Warnock Committee for the creation of a regulatory system however there are two key questions raised by this:

 

  1. Should the welfare of a potential person should outweigh an existing person’s reproductive autonomy?
  2. Why should welfare considerations be restricted only to those seeking assistance to conceive?

 

When discussing justification for the regulation of assisted reproduction, one possible response is that it is appropriate to regulate the area in order to protect the welfare of a child which will be born as a result.  English suggests that the fact that there is  ‘at least a potential person, whose interests must be considered’ as well as those of the parents, ‘legitimises’ the state’s involvement.[11]  This is a view which has been met with strong criticism.  Walker is particularly vehement in his opinion that potential persons have “no standing” – be it moral, legal or ethical – in relation to those who exist.[12]  He suggests that the idea of the welfare of a person requires that that person is able to value this to some degree; thus they must first be in existence in order to be a ‘valuer’.  Thus, as potential persons cannot actually be harmed – and so their welfare need not be protected – they are unable to appreciate any maleficence or any protection from this.  Given the current climate shift of medico-legal jurisprudence towards the protection of patient autonomy, the temptation is to lean favorably towards the position of Walker and suggest that it ought to be up to the parents – the existent persons – alone to decide how they wish to proceed in their reproductive choices.

 

 Regardless of whether the welfare of a potential person is accepted as appropriate justification, however, protection of society and of patients themselves from coercion or abuse by clinics remain valid justification for intervention.  Our society is such that the law will intervene to protect people in circumstances of risk, even if this restricts autonomy to an extent. Thus, in line with the recommendations of the Warnock Commission, protection of the patient can be viewed as an acceptable justification for interference with reproductive privacy and liberty.

 

In addition, the suggestion that regulation is required to protect the welfare of a future child only in assisted reproduction can seem illogical.  Jackson points out that those seeking such treatments will have ‘invariably given considerable thought to parenthood’[13], which cannot be said for all who conceive naturally.  Surely it follows that if we are to bring assisted reproduction into the public realm with the safety of child as a justification, we ought to do so for all who wish to reproduce?  Harris and Alghrani note that a parental licensing scheme of all reproduction should be implemented if we are to be serious about the welfare of a potential child.[14]  The key rebuttal of this is that the test will always be too speculative and imprecise and will never be sufficiently certain to serve as justification for interference with privacy and reproductive autonomy.[15]  Additionally, the practical difficulties would be huge; how would unlicensed parents be effectively reprimanded? Removal of the child or criminalization of the parent would likely be the only effective punishments but these would also be counterproductive to the aim of ensuring the child’s welfare.  Logically, to reject this scheme for some parents means to reject it for all – including the unfortunately infertile. Thus, absent the desire and will to regulate all parents, perhaps none should be regulated. To regulate only some seems discriminatory and contradictory.  While the welfare of the future child is a commonly cited justification for interference, some question whether it is ever appropriate to consider the potential person before the existing.  It is contended that a potential person has no legal or ethical standing in relation to those in existence[16], and as such the potential of harm to the future child cannot justify intervention.  Only imminent and real harm to a real person or society as a whole can justify the regulatory interference with reproductive liberty.

 

This issue is reflected in the British regulatory system, which makes a ‘welfare consideration’[17] a precondition for access to services.  In addition to the problems demonstrated by consideration of the wider ethical issues there is also a key practical concern.  S13(5) of the Human Fertilisation and Embryology Act 1990 is criticised for being worded excessively vaguely.  Mason suggests it is ‘so imprecise as to be either all-embracing or meaningless’.[18] This means its application can often lead to inconsistent decisions, especially due to the inclusion of ‘subjective social questions’[19] which doctors may be ill-qualified to answer, or whose answers will depend, to some extent, on personal beliefs.  This section was improved by the 2008 Act which replaced the requirement for consideration of a father with the need for supportive parenting, thus removing at least one aspect of discrimination from the test.[20]  It has been suggested that due to its inconsistent nature, and the burden this places upon only non-natural parents, s13(5) is an ‘unjustifiable violation of reproductive liberty”[21] and ought to be abolished.

 

 

Illogical Exclusions?

 

With this in mind questions can be raised over the procedures which have been left unregulated.  Self-insemination with fresh sperm is not covered, thus no safeguards exist to ensure the quality of donor consent, nor is the sperm subjected to testing to prevent HIV transmission.[22] However, obvious practical issues would arise if this were regulated – how do we adequately control what happens in the privacy of people homes?  There are also a number of supra-ovulatory drugs available, unregulated by HFEA, even though these carry a high-risk of multiple pregnancies, with potentially tragic results.[23]  It would be fairly easy to bring these within the regulatory scope, although this may be more costly and complex than the current system of GP prescription. For a long time Gamete Intra-Fallopian Transfer (GIFT) was perhaps the most controversial, unregulated procedure. It requires invasive medical intervention in order to place the sperm and eggs together in the fallopian tube.  There is currently no limit on the number of eggs which can be transferred and the risk of multiple pregnancy is higher than with IVF.  Given that this already involves a specialist, and carries more risk than the (regulated) IVF, the exclusion of GIFT from HFEA’s remit made little sense.  However, this particular illogicality was rectified, as paragraph 7 of the HFEA Code of Practice[24] now regulates the number of eggs which can be transferred in these circumstances. While this may be seen as a move signifying awareness in the UK about the seeming illogicality of the regulatory framework, one ought to be wary of taking this opinion as the change was actually enacted following the European Union Tissue and Cells Directives 2007, which obliged the UK to regulate the use of GIFT.[25]

 

The exclusion of these techniques can be considered a ‘regulatory lacuna’[26] and it is a prolifically-expressed concern that the risks of these procedures ought to place them within the reach of regulation. The illogicality of the situation is captured by Brazier when she notes: ‘paradoxically it seems that procedures more likely to cause harm are beyond the reach of regulation’.[27]  It is also noted that one should be wary as seeing the regulation of GIFT as too big a step forward in this area, due to the fact that this only occurred once it was necessitated by an EU Directive, rather than as a result of parliamentary debate or reasoning.  Thus the justification for regulation seems to have been contradicted, and a clear inadequacy in the current legislation exposed.  Though this could be seen as an argument in favour of de-regulation, this is a conclusion we ought to be wary of.  English encourages us not to risk ‘throwing the baby out with the bath water[28] and it is contended that this is an apt assessment of the situation.  Simply because the regulation which currently exists is not perfect does not mean that the situation would be improved by its removal.  In fact, the inadequacy exposed may be best dealt with by extension of the current regulatory scheme.

 

Conclusion

 

English asks whether we can still justify prioritisation of protection over individual autonomy in today’s individual rights-based political climate.[29]  Following examination of the issues on each side of the argument, the conclusion has been reached that where protection of the patient is the justification, intervention with a person’s reproductive liberty and autonomy may be acceptable.  However, those arguments favouring the welfare of the potential child over the existing person’s autonomy are less convincing.  The British regulatory system works fairly well when considered in light of this: its licensing system works to ensure that clinics are safe and do not take advantage of patients. That said, the current framework in the UK has some issues regarding illogicality which ought to be addressed and it is proposed that reform be enacted which removes the welfare test and which brings, at least, GIFT within the scope of the regulation. 

 

 

[1] English, V.  Autonomy versus protection—who benefits from the regulation of IVF? 2006 Human Reproduction Journal

[2] McLean, S.  Modern Dilemmas; Choosing Children 2006 Capercaillie Publishing

[3] Dillard, C. Rethinking the Procreative Right 2016, Yale Human Rights & Development Journal p50

[4] Dillard C (See No3)

[5] Jackson, E. Regulating Reproduction: Law, Technology & Autonomy 2001 Hart Publishing p184

[6] English, V (See No1)

[7] R. Dworkin, Life's Dominion 1993. Harper Collins.  p166.

[8] J. Mill, On Liberty in M. Warnock  Utilitarianism 1962. Collins. p129.

[9] Jackson, E (See No 5)

[10] Robertson, J. Children of Choice; Freedom & the New Reproductive Technologies (1994)

[11] English, V (See No1)

[12] Walker, S.E.P., Potential Persons and the Welfare of the (Potential Child) Test 2014 Medical International Law

[13]  Jackson, E (See No5)

[14] Alghrani, A and Harris, J.  Reproductive Liberty: Should the Foundation of Families be Regulated? 18 Child & Fam L.Q. 191 2006

[15] Ibid.,

[16] Walker, S.E.P (See No12)

[17] 1990 Act S13(5)

[18] Laurie, J. Mason, A. Law & Medical Ethics 9th Ed. Oxford 2013

[19] Elliston, S. The welfare of the child principle and the use of PGD 2012 Routledge p166

[20] Human Fertilisation and Embryology Act 2008, s14(2)(b)

[21] Algrhani & Harris (See No14) p5

[22] Jackson, E (See No5) P184

[23] Ibid.,

[24] Human Fertilisation and Embryology Authority Code of Practice 8th Edition 2016 s7

[25] Directive (2004/23/EC)

[26] Jackson, E (See No5) p185

[27] Brazier, M. Regulating the Reproductive Business? Medical Law Review 1999 p1

[28] English, V (See No1)

[29] English, V (See No1)

 

 
 

Re-evaluating the right to silence in Scotland; is there a case for a qualified right?

February 16, 2017

In this article, Emma-Jayne Scullion (4th year LLB) critiques the Carloway Review's rejection on allowing adverse inferences to be drawn from a suspect's silence in criminal investigations. The pierce seeks to dissect and rebut the reasons given in the Review for upholding an unqualified right to silence, making the case that such an absolute right is more of a sword than a shield...

Re-evaluating the right to silence in Scotland; is there a case for a qualified right?

 

  1. INTRODUCTION

 

 Advocating due process and adversarialism, Scottish criminal law upholds the suspect’s right of silence; a cornerstone of the privilege against self-incrimination.[1] Criminal courts have branded adverse inferences (AIs hereinafter) ‘improper[2] and ‘inappropriate;’[3] a stance reaffirmed in the Criminal Justice (Scotland) Act 2016, following the Carloway Review.[4] Keeping the right unqualified may be morally and practically desirable; it’s retention supports principles such as the presumption of innocence[5] and the accused’s right to a fair trial,[6] whilst arguably preventing wrongful convictions.[7] Yet there is speculation that generous suspect rights hinder the pursuit of the truth in criminal cases,[8] adversely affecting the administration of justice. Hence there is warranted concern in disallowing AIs; I seek to argue that we must not be blinkered by fear of moral upset and complexity. It is vital we contemplate that Scotland’s resistance of AIs in the name of a ‘fair playing field’[9] may have quietly tipped the scale towards the accused; an issue which, in spite of complications, calls for re-examination of the scope of the right to silence.

 

II. ADVERSE INFERENCES; NULLIFYING THE ‘FAIR TRIAL’ AND PRESUMPTION OF INNOCENCE – OR AN EMPTY THREAT?

 

 The significance of Human Rights

 The European Convention of Human Rights (ECHR hereinafter) explicitly provides for the right of charged individuals to be treated as ‘innocent until proven guilty’ in Article 6(2), with Strasbourg affirming that a right to silence is inherent within this.[10] This ECHR jurisprudence has remained consistent, conceding no trial can be fair within the meaning of Article 6 where the suspect is compelled to contribute, or communicate information which may later be used against them.[11]

 Bound by law to take account of Convention jurisprudence,[12] it is clear why Scottish courts have been vocally unwilling to budge.[13] The introduction of provisions to allow AIs would edge towards what critics have branded a ‘method of compulsion;’[14] trapping individuals in a choice between the risk of self-incrimination, and the risk of fatally weakening their defence through exercising silence  subject to later inferences. Clearly at odds with Strasbourg’s notion of a non-prejudicial trial,[15] utilising AIs in Scots law and increasing the vulnerability of the accused is a matter I admit not to be taken lightly.

 

 

 

A presumption of guilt?

 It is deduced, then, that AIs do have potential to dilute the protection a suspect’s silence may provide, facilitating future jury decision-making based not on evidence from questioning, but on the lack thereof; an issue going to the heart of the presumption of innocence. The presumption, at its core, requires that the guilt of the accused must be established by the prosecution; it is not the responsibility of the accused to prove their own innocence through providing explanations, the suspect under no obligation to assist prosecutors in discharging their burden of proof.[16]

  Adjusting the law in Scotland to allow a suspect’s own silence to aid the prosecution could, I acknowledge, upset this long-standing principle, and in turn the fair balance between the State and the individual. Silence is intended as a neutraliser; with one accused facing numerous experienced investigators, it grants the suspect ‘the benefit of the doubt.’[17] On the surface, the allowance of AIs seems to overturn this protection, possibly alleviating the prosecution’s burden, allowing them to dispute the credibility of defence explanations and  ‘bring their case up’ to the necessary benchmark of proof. [18] This leaves us in the uncomfortable position of shifting our presumption towards one of guilt,[19] creating an unfair burden on the accused’s defence to resist this extra tool of State prosecutors.

 

Fears of complexity; Realistic consequences for the Privilege and Presumption

 Having seen how introducing AIs into Scots law would in principle clash with the privilege against self-incrimination and the presumption of innocence, we must now ponder how apparent these moral implications would be in practice; and if they truly justify rejection of change. The reasoning behind leaving these rights untouched is classified as a ‘Conceptualist’ rationale;[20] upholding fairness and rights of due process for the accused discussed above. Although praised as one of the most persuasive objections to allowing AIs in Scotland,[21] it seems unwise to overstate the practical damage which the privilege and presumption would actually suffer at the hands of regulated AIs.

 It has been suggested that attempting to comfortably fit AI provisions around these principles would inflict ‘labyrinthe’ and ‘unnecessary’ complexity upon our law.[22] The alleged complications have been identified primarily as concerning the ample qualifications which AI provisions would need to ensure the rules remain compatible with Article 6, and the implications of these for legislators, judges and juries.[23] I aim to illustrate that these implications, although complex, are not so overbearing or futile that they provide strong reason to reject AI provisions.

 

Labyrinthe?’

  The Strasbourg court has confirmed that many safeguards do need to be implemented to justify the use of AIs. For instance, it has endorsed requirements that a conviction may never be ‘based solely upon inference from silence,’[24] that inference may not be drawn where there is good reason for silence,[25] and that adequate jury directions on these restrictions are ensured by the judge[26]. Of course, these numerous requirements and safeguards which Scottish AI provisions would need are the apparently overwhelming complications cited as a ground for avoiding change. The legislation itself would indeed require meticulous drafting, whilst laying out the lengthy restrictions on AIs to the jury could be a prolonged and arduous process for the courts.[27] However, I would insist this is nothing the Scottish system is unprepared for. Our legislators and courts are well-rehearsed in enacting and enforcing laws in a way that is Convention-compliant; bound to so for almost two decades.[28] Furthermore, the Scottish criminal justice procedure is already renowned for its unique, complex traits; our judiciary experienced in directing juries on deeply intricate areas of Scots criminal procedure such as the requirement of corroboration, and the ‘not proven’ verdict.[29] Thus complexity is no stranger to our system; it is a system built on it.

 

‘Unnecessary?’

 Maintaining that the complications of implementing AIs are not as overwhelming as feared, they do remain implicit in overhauling our procedure. It must be considered if they could bring value, or if the numerous implications are as needless as Lord Carloway predicts. As stated, a main concern is the long list of extra qualifications which must accompany AI reforms. For instance, their operation must function on a discretionary basis; no system of AIs requires or encourages inferences to be drawn, allowing them only on the basis that silence was exercised where answers may ‘reasonably have been expected’ to be given.[30] Due to such qualifications, AIs would avoid penalising every accused, only being lawfully utilised where other circumstances of the case also indicate guilt,[31] and as stated above, may never be used as a primary source of evidence.[32] Dismissed as unneeded complications, I would argue these in fact rebut the argument that AIs only reverse the burden of proof and invalidate the presumption of innocence across the board. By restricting their operation to a discretionary, qualified scheme, we reserve their impact to appropriate cases where they truly assist in achieving justice, pinpointing the guilty individuals at risk of escaping conviction.

 Therefore, I oppose the view that these extra qualifications represent an unnecessary, complex nightmare which could never ‘fit’ alongside our system’s principles. Under Strasbourg authority, they are instead what could allow the presumption of innocence and privilege against self-incrimination to stay intact, coinciding with the incorporation of AIs to increase the efficiency of our procedure.

 

A complementary co-existence

 In light of the above, I maintain the practical implications of introducing AIs are not as far-reaching and complex as principle-based arguments anticipate. There appears little evidence that a change to the law on AIs would repeat the same convolution as in England. It has been suggested that alternatively, we draw our evidence from the Northern Irish system of AI provisions,[33] which has existed since 1988 with no record of challenge or significant difficulty.[34] As a system of closer likeness to our own than the English model, this seems a more credible comparator; one which illustrates AI provisions running smoothly within a similarly adversarial procedure.[35] I therefore argue it need not be one or the other, and that the associated ‘complexities’ are a misplaced concern;  more accurately perceived as ways to ensure the Privilege and Presumption may survive side-by-side with AI reforms, than as reasons to reject them.

 

 

 

 

II. SILENCE; A SAFEGUARD AGAINST WRONGFUL CONVICTION OR A BARRIER TO RIGHTFUL CONVICTION?

 

Police Pressures and False Confessions

 Over and above the arguments of principle and practical implications, there is the possibility that AI provisions may disturb a separate, ‘Instrumental’ role of the right to silence;[36] protecting the innocent from wrongful conviction. It is recognised that under interrogation in an isolated, police station environment, individuals will feel severely emotionally distressed.[37] This has been strongly linked to incidences of false confessions and incriminating statements; suspects viewing them as the ‘immediate’ escape route from intense police questioning and custody.[38] The concern for most critics of AIs is that this occurs even with an unqualified right to silence available, highlighting an ‘inadequacy’ of the right in shielding innocent suspects from the dangers of police pressure.[39] Thus, by rescinding this right even further, we may only expose innocent individuals to an ‘increased risk’ of wrongful conviction, as the threat of AIs being drawn from silence  creates ‘extra pressure’ to unduly confess or answer questions on the spot.[40] There is indeed evidence that, in England and Wales, upon introducing AI provisions there has been increased dishonesty on the part of suspects during questioning.[41] Therefore, it is fair to say that introducing them in Scotland would not be advisable unless we have adequate measures in place to curb this risk.

 

 

Sufficiency of Safeguards

 Assessing the potential safeguards must begin with the absolute right of access to a solicitor for all suspects under questioning [42]. This significantly lowers the chance of nervous slip-ups under pressure, with the presence of a solicitor ensuring guidance for suspects about the scope of their rights and how to make informed choices about exercising them.[43] Lawyers would have better understanding of the consequences of AIs, counteracting the increased vulnerability of suspects if they were indeed to be introduced.

  The safeguards for vulnerable suspects do not end there. It has been confirmed, for example, that the recording of police interviews is common practice in most ‘serious’ cases in Scotland,[44] thus even where the RLA is waived, it can be ensured the suspect is adequately cautioned on the scope of their right. In addition, Scottish police already have lower maximum detention periods than in England and Wales.[45] Thus by default, interviews may be shorter and less intense, combating risks of coerced-compliant confessions. To round off these protections, Scottish law of evidence requires corroboration,[46] thus confessions or self-incriminations caused by the ‘increased pressure’ of AIs would not be as fatal as in other jurisdictions,[47] where confession alone may secure conviction.

 

A shield or a sword?

 Unfortunately, the right to silence and safeguards placed around it are not exclusive to vulnerable, innocent suspects. These measures also provide a sanctuary for guilty individuals;[48] with research suggesting it could indeed be the ‘hardened’ guilty suspects who benefit most from this privilege.[49] This raises concern that the right to silence intrudes upon the ‘normal process’[50] of fact-finding interrogation carried out by police. It is crucial to arriving at the truth[51] and taking a step closer to justice; thus by obstructing it, we could be letting the guilty slip through the cracks.

 An example of this in practice is the low conviction rate in sexual offence crimes.[52] Particularly prevalent in rape cases, suspect statements can often be the only source of evidence aside from the victim’s account;[53] making it increasingly hard to secure conviction. Here, the unqualified right to silence can be perceived as severely disadvantaging the prosecutor, causing difficulties in collating evidence and giving offenders an upper hand. Hence, I assert that controlled AIs, utilised appropriately, would hold beneficial value in this respect.

 Concluding that the above safeguards are satisfactory in protecting innocent suspects from false confession and conviction, I argue their sufficiency demands a measure preventing their exploitation. The allowance of AIs could ensure that protections for the innocent do not simultaneously aid the guilty in ‘escaping’ a rightful conviction.[54]

 

       IV. CONCLUSIONS

 Taking account of all the addressed objections to AIs, arguments seeking to defend the moral rights of the accused, protect the innocent, and keep our law free of complications are all fair concerns. However upon closer analysis, they guard elements of the status quo which need not actually be sacrificed to allow the change. The potential complexities of the reform would be nothing not faced before by the Scottish legislature, courts or juries - and by accommodating them, we may at the same time preserve the values feared to clash with the change. Furthermore, it seems the separate risk for the innocent is neutered by the abundance of safeguards already in place, with the perils of leaving the guilty free to abuse these very safeguards sitting much higher. I would thus propose revision of the right to silence in Scotland, allowing limited inferences to be drawn to rectify the benefit it currently offers guilty individuals in its unqualified state.

 

 

[1] See Lord Carloway, ‘The Carloway Review’ para 7.5.26, sourced www.gov.scot/About/Review/CarlowayReview; referring to RTS and Privilege in tandem, as values with which changes should “fit well.”

[2]Larkin v HM Advocate’ 2005 S.L.T. 1087, para 11.

[3]  ‘Dick v HM Advocate’ 2013 HCJAC 5, para 10.

[4] See section headed ‘Adverse Inferences’ paras 7.5.1-7.5.26, ‘The Carloway Review,’ as ref.

[5] RTS considered a consequence of presumed innocence; See G. O’Reilly, ‘England Limits the Right to Silence and Moves towards an Inquisitorial System of Justice,’ Journal of Criminal Law and Criminology, Vol 85 Issue 2 (1994/95), Northwestern University, p420.

[6] Article 6(1)/(2), European Convention of Human Rights, encompassing RTS and protection from self-incrimination; see ‘Funke v France’ 1993 16 EHRR 297, implemented via S2 Human Rights Act 1998.

[7] See ‘The Report of the Royal Commission of Criminal Justice’ (Cm 6623), Ch 4 para 22, sourced https://www.gov.uk/government/publications/report-of-the-royal-commission-on-criminal-justice.

[8] See M. Redmayne, ‘Re-thinking the Privilege against Self-Incrimination,’ Oxford Journal of Legal Studies, Vol. 27, No. 2 (2007), Oxford University Press, page 209 para 1; silence causes ‘obvious restrictions on criminal investigation.’

[9] See P.B. Glover, ‘Proceed with Caution(s): A critique of the Carloway Review’s Rejection of Statutory Adverse Inference Provisions in Scottish Criminal Law,’ Aberdeen Student Law Review 1 (2013),at p3; referring to the ‘unwritten doctrine of fair play.’

[10]Funke v France’ as ref.; See further comments of P. Mahoney, ‘Right to a Fair Trial in Criminal Matters Under Article 6 ECHR,’ Judicial Studies Institute Journal, 4.2 (2004) at p121-122, sourced www.jsijournal.ie/html.

[11] See ‘Saunders v United Kingdom’ (1997) 23 E.H.R.R. 313 at para 1(b); highlights interdependence of the RTS, presumption of innocence and privilege against self-incrimination, and their stance as ‘international standards’ of a fair trial.

[12] S2(1)(a) Human Rights Act 1998.

[13] See ‘Larkin’ and ‘Dick’ as ref.; and ‘Hoekstra v HM Advocate (No 7)’ (2002) S.L.T. 599, at para 107.

[14] See K.A. Cavanaugh, ‘Emergency Rule, Normalcy Exception: The Erosion of the Right to Silence in the United Kingdom,’ Cornell Intl. Law Journal, Vol 35 No 3 (2002), at p 494 sourced www.scholarship.law.cornell.edu.

[15] See ‘Saunders v UK’ as ref. at para 1(b); scorning the prosecutors use of evidence ‘obtained through methods of coercion.’

[16] See Lord Carloway’s summary of the presumption, ‘The Carloway Review’ as ref. 7.5.11-12.

[17] P. Mahoney, ‘Right to a Fair Trial,’ as ref. p120; see further his comments on the elements of Article 6 providing ‘equality of arms,’ p112.

[18] J.D. Jackson, ‘Silence and Proof: Extending the Boundaries of Criminal Proceedings in the UK,’ Intl. Journal of Evidence & Proof Vol 5 (2001) p155, on the drawing of inferences in the Northern Irish jurisdiction.

[19] See K.A. Cavanaugh, ‘Emergency Rule, Normalcy Exception,’ as ref. p493.

[20] See the rationales of P. Roberts and A. Zuckerman, ‘Criminal Evidence,’ 2nd Edn (2010), Oxford University Press, ap549-563.

[21] Classed the ‘strongest’ of Roberts and Zuckerman’s categories of justification; J. Chalmers and F. Leverick, ‘Substantial and Radical Change: A New Dawn for Scottish Criminal Procedure,’ The Modern Law Review, Vol 75 No 5 (2012), The Modern Law Review Ltd p858.

[22] See ‘The Carloway Review,’ as ref., 7.5.24 and 7.5.26.

[23] See J. Chalmers and F. Leverick, ‘Substantial and Radical Change,’ as ref. at p859.

[24]Adetoro v UK’ (2010) E.C.H.R 46834/06.

[25]Condron v UK’ (2001) 31 E.H.R.R. 1.

[26]Condron,’ as ref.

[27] See J. Chalmers and F. Leverick, ‘Substantial and Radical Change,’ as ref. at 858-859; highlighting the likelihood confusion and lack of clarity in the provisions; see further ‘R v Bresa’ [2005] EWCA Crim 1414 para 4, on the ‘length and detail’ of jury directions required on English AIs.

[28] See S29 Scotland Act 1998; S6 HRA 1998.

[29] Both historical elements of our system; NP verdict dating back to Madeline Smith case 1857; Corroboration established 17th century (See Mackenzie: ‘Laws and Customs of Scotland in matters Criminal,’ (2nd (Seton) ed) 1699 (p 269) c 26 para 14).

[30] S34(1) Criminal Justice and Public Order Act 1994; giving English law on AIs; ART 3(1) Criminal Evidence (Northern Ireland) Order 1988; gives NI equivalent; see further ‘Condron v UK,’ as ref. on when answers can be reasonably refused.

[31] See ‘Condron v UK’ as ref.

[32]  See ‘Adetoro’ as ref.; and ‘Murray v UK’ (1996) 22 E.H.R.R. 29, para 51.

[33] See P.B. Glover on Criminal Evidence (Northern Ireland) Order 1988, in ‘Proceed with Caution(s),’ as ref. p9; it has ‘stood the test of time.’

[34] C. Hamilton, ‘Threats to the Presumption of Innocence in Irish Criminal Law: an Assessment,’ International Journal of Evidence and Proof , Vol 15 No 3 (2011) sourced www.pure.qub.ac.uk/portal/en/publications; cites no challenges at Strasbourg or Irish Supreme Court.

[35] P.B. Glover, ‘Proceed with Caution(s),’ as ref. p20; argues NI system ‘can and does’ strike a balance.

[36] Another justification category of Roberts and Zuckerman,‘Criminal Evidence,’ as ref.

[37] I. Dennis, ‘Instrumental Protection, Human Right or Functional Necessity? Reassessing the Privilege against Self-Incrimination?’ Cambridge Law Journal, Vol 54 No 2 (1995) p371, sourced www.journals.cambridge.org; circumstances noted as creating ‘psychological pressure.’

[38]Report of the Royal Commission,’ as ref. p69, on ‘Coerced-compliant’ confessions.

[39] I. Dennis, ‘Instrumental Protection,’ as ref. p350; claims it is ‘doubtful’ protection.

[40] See ‘Report of the Royal Commission,’ as ref. p66 para 22.

[41] J. Chalmers and F. Leverick, ‘Substantial and Radical Change,’ as ref. p858-859.

[42]Cadder v HM Advocate;’ [2010] U.K.S.C. 43 para 63; s15A Criminal Procedure (Scotland) Act 1995.

[43] F. Leverick, ‘The Right to Legal Assistance during Detention,’ Edinburgh Law Review, Vol 15 No 3 (2011), p365.

[44] Ibid.

[45] 12-24 hour maximum (S14(2)/14A(2) Crim. Proc. (S) Act 1995); cf 96 hour max. (S41-44 Police and Criminal Evidence Act 1984).

[46] AJ Alison, ‘Principles and Practice of the Criminal Law of Scotland,’ 1833, p.551.

[47] A. Sanders and L. Bridges, “The right to legal advice”, in C Walker and K Starmer (eds), ‘Miscarriages of Justice: A Review of Justice in Error,’ (1999) 83 p98; main cause of wrongful conviction.

[48]Report of the Royal Commission,’ as ref. p64 para 12; considers exploitation by ‘unscrupulous offenders.’

[49] I. Dennis, ‘Instrumental Protection,’ as ref. p350, drawing from G. Gudjonsson, ‘The Psychology of Interrogations, Confessions and Testimony,’ (1992), Chicester, Ch 4.

[50] See D. Dixon, ‘Politics, Research and Symbolism in the Criminal Justice System,’ Anglo-American Law Review, Vol 20 (1991), p38.

[51] I. Dennis, ‘Instrumental Protection,’ as ref. p349; discusses ‘central investigative strategy’ of police.

[52]Criminal Proceedings in Scotland 2013/14’ (2014), Table 2b p32, sourced www.gov.scot/publications/2014.

[53] ASPS Response, Carloway Consultation ‘Responses Report,’ sourced www.gov.scot/resource/doc/925/0120161,p119 para 27.

[54]Report of the Royal Commission,’ as ref. p64 para 12.

 

Nein heißt jetzt wirklich Nein - Finally No means No

February 16, 2017

In this essay, Julia Bambach (4th year LLB Law and Business) analyses the development of the criminalisation of rape under German law.

Nein heißt jetzt wirklich Nein - Finally No means No

- Examining recent developments in German rape law


Finally, “no means no” in Germany after the Bundestag passed a new law redefining what constitutes rape in July 2016. By unanimous vote, German Parliament introduced new legislation broadening the definition of sex crimes to cover cases in which a victim withheld consent but did not physically fight back. Under the Bill, also known as the "No Means No" ("Nein heißt Nein") law, any form of non-consensual sex will now be punishable as a crime. Previously, only cases in which victims could show that they physically resisted their attackers were punishable under German law. Often criticised of lagging behind other jurisdictions, the change in German rape law has been welcomed by many. Others claim that the new legislation is only a first step and must be further innovated. This essay will examine the recent developments in German rape law by illustrating the changes made; the underlying causes prompting the developments; and the implications of this for future German criminal law.

 

The state of German rape law pre-reform

Germany’s rape law has often been criticised of being antiquated, which is reflected by the criminalisation of marital rape as late as 1997. [1] As rape is considered a criminal offence, the German criminal code, Strafgesetzbuch, contains all relevant provisions.[1] Section 177 of the German Criminal Code provides that sexual assault and rape are felonies punishable with imprisonment of one year or more. The coercion of the victim by force, by threat of imminent danger to life or limb, or by exploiting a situation in which the victim is unprotected and at the mercy of the offender is an essential element for criminal liability.  Each of these requirements necessitate coercion, which is defined as forcing the victim against his or her will to act or to refrain from acting in a certain way or to tolerate a certain action.[2]

Furthermore, section 177 of the German criminal code necessitated a need to prove coercion, the use of violence, the threat of danger to life or limb or taking advantage of a vulnerable position. If the victim has been paralysed by fear or did not resist enough, then it is often not considered as being submitted to coercion. For example, a victim is not regarded to have been in a vulnerable position when the rape took place in a house where the victim could have run away or called for help.[3] The courts have adopted a definition that is even more restrictive regarding the “vulnerable position”.[4] Accordingly, the victim must be objectively defenceless to the potential violence of the perpetrator. The subjective views of those affected, possibly crippling fear of impending rape, is often considered irrelevant; thereby neglecting that typical behavioural responses to sexual violence include being paralysed with fear and non-physical defence.[5] Moreover, the Federal Court of Justice held that merely being alone with another person or a surprising and [2] unanticipated sexual harassment does not fulfil the requirements of coercion and of “being unprotected and at the mercy of the offender.” [6]

 

Taking these requirements for criminal liability into consideration, a simple “no” was thus insufficient to find defendants guilty. In addition, the issue of consent had not been addressed in the provision regarding rape crimes. Thereby, the legislation failed to correspond with the Istanbul Convention - a Council of Europe Convention on preventing and fighting violence against women introduced in 2011. The Convention aims to protect women against all forms of violence and to prevent, prosecute, and eliminate violence against women and domestic violence.[7] Article 36 of the Convention obligates the parties to take the necessary legislative measures to ensure that engaging in any non-consensual act of a sexual nature is criminalised. The Convention requires signatories, including Germany, to penalise all non-consensual sexual acts, as consent to a sexual act must be given voluntarily as a result of the free will of the person. As it is further outlined in the Explanatory Report, prosecution of this offence requires a contextual assessment of the evidence “to establish on a case-by-case basis whether the victim has freely consented to the sexual act performed. Such an assessment must recognise the wide range of behavioural responses to sexual violence and rape which victims exhibit and shall not be based on assumptions of typical behaviour in such situations”.[8]

 

Failures of the previous legislation

As is the case around the world, sexual violence is largely a hidden phenomenon in Germany.[9] There are about 8000 reported sexual violence crimes annually in Germany; whilst the number of unreported cases is much higher - only 8 per cent are reported to the police.[10] Non-reporting of sexual violence has been attributed to three factors, acting singly or in concert, including victim fear; feelings of helplessness; the perceived powerlessness of police; and the threat of further victimization from the authorities. In addition, a study of 107 cases conducted in 2014 by the German association of women's counselling centres and rape crisis centres (BFF) demonstrated the inadequacy of this legislation in practice and its implications for victims.[11] In every case examined in this study, sexual assaults had been unambiguously committed against the victim's will, which had been communicated verbally to the perpetrator. As the law placed too much focus on whether the victim resisted, it failed to reflect real-life scenarios. This gap between the law and reality meant that for a broad majority of the cases examined, charges were not filed or there was no court conviction due to the high threshold requirement of evidence.[12] The legislation had thus created a gap in protection, essentially forsaking victims of rape who were not able to prove so-called active resistance.

This gap in protection was brought to light following the events of New Year’s Eve 2015 in Cologne. An estimated 1,000 women reported having been sexually assaulted by men operating in a seemingly coordinated way at Cologne’s main train station on New Year’s Eve. The attacks, which deeply shocked Germany, were mostly blamed on men of Arab and North African origin. The subsequent admission by the city’s police that most of the attackers would probably never be caught sparked outrage, further fuelling the debate about Germany’s willingness to accept a record number of refugees and migrants last year. In addition, hundreds of complaints of sexual violence were filed with the police after the attacks, but many could not be pursued in court due to a lack of evidence.

Another instance which drew public attention to the failures of Germany’s rape law, was the case of model and television personality Gina-Lisa Lohfink, who was fined after a court ruled she had falsely accused two men of rape. One of the two men she had accused was previously convicted for illegally sharing a so-called “sex video” online in which Lohfink appears naked, at times apparently semi-conscious or unconscious, while he and another man perform sexual acts on her. She clearly shouts “no” and “stop” several times. After the video was released, she accused the men of raping her but due to the legislative requirements stating that a simple “no” is not enough for culpability, the case was dropped by the prosecutor’s office. Instead, the prosecutor then decided that Lohfink had falsely testified and she, originally the victim, found herself on trial. This case, one of many instances where justice has been miscarried, is only one of many instances that lead one to the conclusion that the previous German rape law protects the perpetrator rather than the victim in a majority of cases.[13]

 

Drive for Reform

Over the past decades, women's rights groups and campaigners had been advocating for a legislative overhaul. Women’s rights groups and opposition lawmakers in Germany have been pushing over the past two years for legislation that would codify the principle of “no means no”, a significantly tougher stance for the country: the only one in Western Europe that had been lacking clear legislation against groping.[14]

Efforts to pass a draft Bill took on new urgency in the months after the series of assaults in Cologne resulting in an agreement by the German government to pass the draft bill in order to close gaps in the current criminal law relating to sexual offences.[15] The draft Act would amend section 179 of the German Criminal Code, which criminalizes the abuse of persons who are incapable of resistance due to mental or physical disabilities, and would from there on apply to all persons incapable of resistance to abuse due to special enumerated circumstances. In addition to the victim’s physical or psychological condition, these circumstances would include the victims being taken by surprise by commission of the crime and the victim’s fear of severe harm or adverse consequences were he or she to resist.

 

The sudden urgency and unprecedented public interest in the renewed reform efforts can be considered curious timing. Germany had continually ignored calls for the removal of physical resistance as a necessary element of a guilty verdict and failed to correspond to requirements set out in the Istanbul Convention as well as demands by the United Nations, which has long promoted an appropriate standard for sexual assault legislation. Only after the Cologne attacks, the reform changes were applied and previous opposition to the bill relaxed, while attitudes to sexual violence have changed as the majority of the German population approved the implementation of a new draft law.[16] Apparently, the incidents in Cologne had given the draft Bill the momentum so desperately needed, leading a prominent German journalist to lament in a widely discussed op-ed that German society only cares about sexual violence when perpetrated by foreigners or Germans of colour.[17]

 

State of German rape law post-reform

The new legislation, dubbed the "No means No law", is intended to cover the actual situations in which most attacks occur, by broadening the definition of sex crimes to cover cases in which a victim withheld consent but did not physically fight back. This includes cases in which the victim is taken by surprise, intimidated or threatened with other violence, for example in an abusive relationship. The reforms will allow prosecutors and courts to take into account physical, verbal and non-verbal signals from the victim when determining whether or not a rape occurred. Anyone convicted of sexual activity that goes against the "discernible will" (erkennbaren Willen) of the victim faces up to five years in prison. In addition, the new legislation classifies groping as a sex crime punishable by a two-year prison term or a fine, also lowering the bar for deporting foreign nationals who commit sexual offences.

Proposed by the conservative parliamentary group, a stipulation in the form of Paragraph 184j has also been added to the new legislation, which enables prosecution of anyone who at least tacitly accepts that a group that they are a part of commits crimes. Essentially, this makes it illegal to be part of a group committing assaults in a crowd rather than requiring individual proof that a specific person attacked a victim. This specific measure is intended to deter attacks such as those that occurred in Cologne, although the constitutionality of this clause is disputed.[18] 

 

Criticism
Hailed by some as a milestone, this change in law is expected to increase the number of victims who choose to press charges, reduce the number of criminal prosecutions that are shelved and ensure sexual assaults are properly punished.[19] As the will of the victim - and not coercion - constitutes the requirement for the prosecution of sexual assault, the new legislation establishes a paradigm shift in German criminal jurisprudence. Nevertheless, many campaigners view the new legislation as a first step that does not go far enough yet, with some expressing preference for heading towards a “Yes means Yes” approach, exemplified by a 2015 law passed in California[20] that makes the legal standard for sex affirmative verbal consent.

Another criticism refers to the addition of a clause to the new legislation that would make it easier to deport foreigners charged with sexual assault. It has been criticised as not being a relevant part of a law, which is supposedly focused on sexual violence crimes and not matters of deportation. In addition, another measure stipulated within the new legislation that enables the prosecution of anyone who at least tacitly accepts that crimes are committed by a group they are part of, has been criticised as unconstitutional. This refers back to the curious timing of the sudden enthusiasm for the reform in German criminal law. Many women's rights campaigners complained that the fight for women’s sexual self-determination was being exploited to generate hate towards foreigners in light of the politically contentious debate surrounding Germany’s ‘refugee crisis’. In accordance with this claim, critics have also alleged that the new law is an attempt to deal with that public outcry, rather than to seriously reform the law on rape and sexual violence.[21]

Moreover, the publicly appealing “No means No” tag line garners much attention; a far more complicated culture may constrain the effect of those crucial words,[22] which have finally been embedded in German criminal law. A key objective of the new legislation is to finally provide access to the system of justice that  survivors of sexual violence are entitled to. However, this cannot be done by merely providing a legal foundation, as many barriers will continue to exist.[23] It is an extremely traumatic experience for victims to ‘relive’ what happened to them. In most cases, there is no third party eye-witness and victim-blaming is still all too common, even in the judicial system.[24] For the most part, the survivor needs to convince others there was no ‘fault’ on their part, for what they were wearing or where they were walking, or for something else they did or did not do.[25] The only reason rape happens is because of what rapists do, yet it is still incredibly rare for perpetrators to be given full blame, or even to be stigmatised for their actions.[26] It seems that the justice system may yet remain ingrained with an understanding that a lack of consent is demonstrated through physically fighting back.

 

Conclusion

To conclude, the new legislation is generally an important and long overdue change within German criminal law. The updated law on rape and the introduction of the criminal offence of groping aims to rectify the failures of past legislation and seeks to finally grant victims of sexual violence access to justice. However noble the intended aims of this recent reform may be, it remains to be seen whether these efforts can actually bring about a successful outcome. It must be acknowledged that the justice system itself may yet remain ingrained with an understanding that a lack of consent is demonstrated through physically fighting back. In addition, the continued consideration of clothing worn, intoxication levels and previous sexual history of the victim when assessing the validity of a claim, continues to constitute an institutional barrier to proving sexual assault. These considerations amount to a host of “rape myths”, undermining the credibility of the victim’s claim and impacting how victims of sexual violence are perceived, both in society and in the courtroom.[27] As long as rape myths within society as well as the legal system are being perpetuated, a culture in which rape can be justified and even excused will persist.[28]

This is why a shift in perception across the whole of society seems to be a necessity and appears vital for the successful protection of victims. For the reform to flourish and achieve its objectives of bringing justice to survivors of sexual violence, the creation of a cultural and social environment, which welcomes this new approach, is crucial.[29] The recent reform of German rape law can therefore be considered a hopeful first step in changing attitudes and shifting perceptions of sexual violence so that victims receive the protection and justice they deserve.

 

 


 

 

[1] German Criminal Code, §177.

[2]  German Criminal Code, §§ 177 & 240.

[3]  BGHSt 51, 283 f.; BGH NStZ 2009, 263.

[4]  Landgericht Essen. (2012). Urteil vom 10.09.2012, Az. 25 KLs 10/12, Essen.

[5]  Koenig, A. et al., The Jurisprudence of Sexual Violence -  A Working Paper of the Sexual Violence & Accountability Project Human Rights Center University of California, Berkeley (May 2011), 16-19.

[6]  Landgericht Essen. (2012). Urteil vom 10.09.2012, Az. 25 KLs 10/12, Essen.

[7]  Council of Europe. (2011) Übereinkommen des Europarats zur Verhütung und Bekämpfung von Gewalt gegen Frauen und häuslicher Gewalt und erläuternder Bericht, Istanbul, 15.

[8]  Explanatory Report (2011), Point (192). 

[9]  Hagemann-White, C. (2001) European Research on the Prevalence of Violence Against Women, Violence Against Women, 7 (7), 732-759.

[10] Bundesministerium des Inneren. (2012). Polizeiliche Kriminalstatistik 2012, Berlin, p.4.

[11] Clemm, C. and Eckhardt, A., Fallanalyse zu bestehenden Schutzlücken in der Anwendung des deutschen Sexualstrafrechts bezüglich erwachsener Betroffener (Juli 2014).

[12] Bundesministeriums für Familie, Senioren, Frauen und Jugend, Lebenssituation, Sicherheit und Gesundheit von Frauen in Deutschland (2005) Eine repräsentative Untersuchung zu Gewalt gegen Frauen in Deutschland, Berlin, 180.

 

[14] Hagemann-White, C. (2001) European Research on the Prevalence of Violence Against Women, Violence Against Women, 7 (7), 732-759.

[15] Gesetzentwurf der Bundesregierung, Entwurf eines Gesetzes zur Änderung des Strafgesetzbuches – Verbesserung des Schutzes der sexuellen Selbstbestimmung [Draft Act of the Federal Government, Draft Act to Amend the Criminal Code – Improvement in the Protection of Sexual Self-Determination] Mar. 16, 2016), Federal Ministry of Justice and Consumer Protection.

[16] http://www.dw.com/en/majority-of-germans-approve-of-no-means-no-rape-statutes/a-19337203

[18] Deutscher Bundestag -Parlamentsnachrichten, Nein heißt Nein« im Sexualstrafrecht (06.07.2016) https://www.bundestag.de/presse/hib/201607/-/434604.

[19] Clemm, C. and Eckhardt, A., Fallanalyse zu bestehenden Schutzlücken in der Anwendung des deutschen Sexualstrafrechts bezüglich erwachsener Betroffener (Juli 2014).

[20] www.bbc.co.uk/news/world-us-canada-29406138

[21] Deutsche Presse Agentur, Nein heißt Nein. Und was bedeutet das jetzt? (07.07.2016) http://www.spiegel.de/politik/deutschland/sexualstrafrecht-alles-was-sie-zu-nein-heisst-nein-wissen-muessen-a-1101658.html.

[22] Sanday, P.R. (1981) The Socio-Cultural Context of Rape: A Cross-Cultural Study, Journal of Social Issues, 37 (4), 5-27.

[23] McBarnet, D. (1981) Conviction Law, the State and the Construction of Justice, London: Macmillan.

[24] Polaschek, D.L.L., Ward, T. and Hudson, S.M. (1997) Rape and Rapists: Theory and Treatment, Clinical Psychology Review, 17 (2), 177-144.

[25] Lonsway, K.A. and Fitzgerald, L.F. (1994) Rape Myths: A Review, Psychology of Women Quarterly, 18, 133-164.

[26] Workman, J.E. and Orr, R.L. (1996) Clothing, sex of subject, and rape myth acceptance as factors affecting attributions about an incident of acquaintance rape, Clothing and Textiles Research Journal, 14 (4), 276-284.

[27] Schafran, L. H. (2015). Barriers to credibility: Understanding and countering rape myths, retrieved from the National Guard website:http://www.nationalguard.mil/Portals/31/Documents/J1/SAPR/SARCVATraining/Barriers_to_Credibility.pdf.

[28] J Conaghan and Y Russell (2014) Rape myths, law, and feminist research: myths about myths?, Feminist Legal Studies, 22 (2), 25-48.

[29] Home Office (2000) Setting the Boundaries: Reforming the law on sex offences (Volume 1), London: Home Office Communication Directorate.


 

 

 

Shaky Foundations for Open Ground - Marriott v Greenbelt Group Ltd LTS/TC/2014/27 - Lands Tribunal, 2 December 2015

February 15, 2017

Through an analysis of Marriot v Greenbelt Group Ltd, David Jeffries (4th year LLB) criticises the upholding of the use of real burdens in relation to the "land owning maintenance model", arguing that this contravenes the prohibition on real burdens that have the effect of creating monopolies.

 

Shaky Foundations for Open Ground - Marriott v Greenbelt Group Ltd LTS/TC/2014/27 - Lands Tribunal, 2 December 2015

 

An Attack on the Land Owning Maintenance Model

This case was highly significant for a particular model of estate management, known as the “land-owning maintenance model”, which came under scrutiny due to its use of real burdens. The model involves areas of “open ground” in property developments being transferred by the developers to estate management companies, who in turn maintain it for the benefit of the other properties in the development. The scheme works through the imposition of a real burden on the group of properties to pay for the maintenance costs, and a real burden on the open ground, which obligates the estate management company that owns it to maintain it. The applicants in this case were challenging the validity of the burden to pay money to the estate management company, Greenbelt Group Ltd, which was a direct attack on the compatibility of the land-owning maintenance model with Scots law. If a burden to pay money to an estate management company was held to be invalid by nature, then the model would cease to exist, as no company would accept such maintenance obligations without remuneration. 

In examining the judgement of the Lands Tribunal, the arguments against the burden will be outlined, along with a summary of the Tribunal’s judgment. Focus will be placed on the decision relating to one of the most significant grounds of challenge, namely the Tribunal’s verdict on whether the burden had the effect of creating a monopoly in contravention of Section 3(7) of the Title Conditions (Scotland) Act 2003 (the 2003 Act). Its arguments in relation to this issue will be explored, with a view to evaluating whether or not the Tribunal is successful in justifying its verdict.  It is suggested that while the Tribunal’s decision may have dealt with the attack and secured the survival of the land owning maintenance model for the moment, it has done so on grounds which are open to question, and may have applied the 2003 Act in what could be viewed as a creative and potentially unconvincing way.

 

Background of the Case and the Verdict of the Lands Tribunal

The broad circumstances of the case are that Bett Homes, a developer, disponed the open ground in the Menstrie Mains housing development to Greenbelt, whose title was burdened with the obligation to maintain the aforementioned open ground. The title of each homeowner in the development was burdened with the obligation to pay Greenbelt for this maintenance. The homeowners had no rights in respect of the open ground, it was owned outright by Greenbelt. These arrangements are typical characteristics of the land owning maintenance model.

The applicants in the present case owned a house in the development, and challenged the validity and applicability of the burden obligating them to pay Greenbelt for its work under Section 90(1)(a)(ii) of the 2003 Act. They did so on five grounds. The first was that the burden was not praedial, in that it did not satisfy the requirements of Section 1(1), 3(1) and 3(2) of the 2003 Act which essential state that a real burden must relate to the land it burdens, not just the owner. The second was that it created a monopoly in contravention of Section 3(7) of the 2003 Act. The third was that it was invalid under s3(6) of the 2003 Act and common law, in that it was contrary to public policy, repugnant with ownership, and illegal. The fourth was that it was illegal under Section 18 of the Competition Act 1998 in that it constituted an abuse of a dominant position. The fifth was that the burden was invalid due to uncertainty.

The applicants were unsuccessful with regard to every ground of challenge bar the one which argued that the burden was invalid due to uncertainty. In its concluding statements the Tribunal remarked of the challenge: “[as] an attack on the land-owning model per se it has failed. The applicants have succeeded not because of any structural flaw in the model but because the benefited land property was not adequately identified in the constitutive deed.”[1] Therefore, the general validity of the burden and consequently the underlying basis of the land owning maintenance model was upheld, which appears to be a resounding success for proponents of the scheme. However, one particular aspect of the decision will be subject to greater examination, with a view to illustrating that the argument relating to the prohibition of burdens creating monopolies could be seen as unconvincing.

 

Prohibition of the Creation of Monopolies

It was argued, unsuccessfully, that the burden to pay money towards the maintenance costs was contrary to Section 3(7) of the 2003 Act. The provision states that:

“Except in so far as expressly permitted by this Act, a real burden must not have the effect of creating a monopoly (as for example, by providing for a particular person to be or to appoint— (a) the manager of property; or (b) the supplier of any services in relation to property).”

The applicants argued that the burden had the effect of creating a monopoly as it allowed the respondents to charge the proprietors for providing the maintenance service, and gave them no opportunity to seek another provider in light of unsatisfactory service. It is no exaggeration to say that this ground of challenge, even if it were to stand alone, attacked the very existence of the land owning maintenance model. If a burden of this type was found to be invalid due to illegally creating a monopoly, the capacity to make money would disappear from the model. The Tribunal held, by a slim majority of two to one, that the burden did not contravene Section 3(7), thus narrowly preserving the model.

  1. The Argument of the Majority

The majority recognised that the situation in question “is a monopoly: the respondents have exclusive control of the supply of a service.”[2] However, the essence of its argument lay in the assertion that the burden did not “create” that monopoly, as is required for it to contravene Section 3(7), but rather merely “reflected” one[3]. The majority based this assertion on the fact that it was the respondents’ right to manage the land which they owned that created the monopoly, not the burden, stating that “the maintenance of land in the hands of its owner does not give rise to a monopoly in the sense required for section 3(7), otherwise any maintenance burden could be said to create a monopoly.”[4] In support of this line of argument the majority mentioned the monopolistic nature of land ownership, and the right of a land owner to manage their land how they please. It stated that all the burdens did in this case was turn this right into an obligation and impose certain standards of maintenance, rather than alter or create new monopolistic characteristics that did not exist already[5]. The majority ended its ownership argument by stating that the norm when a monopoly is complained of is to demand that it is ended, but that this “simply cannot happen when the monopoly comprises rights which are inherent in and inalienable from the ownership of land”[6]. The rationale of these arguments can be called into question in certain respects.

 

  1. Creative Interpretation of the Legislation

Firstly, it will be noted that the narrow focus on the question of whether the burden “created” the monopoly (as opposed to merely having the effect of creating it), on which the majority based its argument, is as literal an interpretation as could have possibly been made from the wording of Section 3(7), and may even have resulted in the purpose of the position being frustrated. It could be pointed out that if the Scottish Parliament intended to place so much emphasis on the need for the burden to actually create the monopoly, it may have excluded the qualification that a burden can “have the effect” of doing so, which seems to widen the scope of the provision somewhat. It could have sufficed to say “a real burden must not create a monopoly”, which is how the majority appeared to interpret it, but this is not what the provision stipulates. Although there is little mention of this provision in either the Scottish Parliament “Inquiry into the effectiveness of the provisions of the Title Conditions (Scotland) Act 2003”, or in the policy memorandum, the explanatory notes state that Section 3(7) “makes clear that a real burden cannot create a monopoly, except where the contrary is expressly permitted by the Act.” The only express permission found in the 2003 Act is for community burdens to appoint managers under Section 26(1)(d) and for the creation of manager burdens under Section 63, which are themselves time limited[7]. Gretton and Steven use similarly unqualified terms, asserting that “a real burden must not create a monopoly, for example by requiring that a certain company always manages a development”[8] (which is essentially the effect of this scheme of burdens). It seems therefore that the prohibition on burdens which have the effect of creating a monopoly is relatively strict, particularly looking at the limited exceptions to the rule. The Tribunal has given the term “creating” the most literal interpretation possible, which could be argued to go against the general scope of the provision.

 

  1. The Effect of the Burden to Pay Money

In focussing so literally on what it is that has “created” the monopoly, it could be argued that the majority missed what the effect of the burden in this case actually was, which could be seen as the essential element to identify, bearing in mind the argument that Section 3(7) of the 2003 Act encompasses situations where burdens “have the effect of creating” a monopoly.  It began its argument by providing two “potentially relevant”[9] definitions of monopoly, the first of which reads “Exclusive possession or control of the trade in a commodity, service, etc.; the condition of having no competitor in one’s trade or business”. This definition will be used for the purpose of this argument. It was accepted that the services being provided to the proprietors of the other properties were the management operations[10], and that there was indeed a monopoly with regard to these services. The majority then delivered the arguments mentioned above regarding the fact that the monopolistic nature of land ownership and Greenbelt’s right to manage its own land were what created the monopoly, rather than the burden to pay which merely reflected it. However, it could be argued that the burden indeed created the monopoly, or at the very least had the “effect” of doing so in the wording of Section 3(7). Hypothetically, if the points about the consequences of land ownership and all that it entails are assumed to apply, and it is assumed for a moment that there is no burden, then there can be said to be no monopoly. The proprietors would not have to pay Greenbelt and therefore there would be no trade in a service, and consequently no exclusive control of such a service. Furthermore, Greenbelt would still have all its rights in its land, which would be totally unaffected, and it would still be subject to the maintenance burden. Now, once the burden to pay is added to the scenario, the situation changes. There is now a group of proprietors paying for a maintenance service, of which one undertaking has exclusive control. It is Greenbelt’s business, which has no competitors. These are the characteristics of a monopoly as defined by the majority. The imposition of a burden to pay on the proprietors arguably has the effect of creating a situation where the provision of a service is monopolised by a company. It is true that it was Greenbelt’s ownership of the land that made it the only one that could be responsible for maintaining the land, as it belongs to it. This is not a monopoly in itself. Maintaining one’s land alone is not a business. The burden then gave Greenbelt the grounds to claim enough remuneration to make a profit[11] (it should be noted that it was receiving more than merely a share of the costs of maintenance) and created a market for Greenbelt to provide maintenance services over which it had a monopoly. This could be argued to be enough to show that the burden had the effect of creating a monopoly in terms of Section 3(7), even if it was not the burden itself which gave Greenbelt actual control of the maintenance.

  1. The Possibility of Ending the Monopoly

The same line of thinking would also challenge the majority’s assertion, mentioned in section i), that a monopoly in a case such as this could not simply be ended because of the inalienable rights Greenbelt held in the open ground. It is true that the monopoly could not be ended in the sense the majority is referring to, in that other suppliers of services could never be allowed a chance to manage land belonging to another as that would be repugnant with ownership. However, the monopoly could still be ended, relatively simply, without infringing on Greenbelt’s rights and obligations. This would work by the burden being declared invalid due to its contravention of Section 3(7). This would have the effect that the proprietors would no longer be under any obligation to pay. There would be no impact on Greenbelt’s ownership right, and it would still be under a maintenance obligation. It may well want to sell the land, but that is a decision unrelated to its rights in the land. It could be suggested that with this particular argument the majority tried to create a situation in which a finding of a monopoly created by a burden, which would have to be ended, would have resulted in consequences repugnant with ownership, in that other business would have been able to compete to manage Greenbelt’s land. However, this is not the case. Greenbelt would simply stop receiving a profit for maintaining its own land.

 

Impact of the Decision and the Future of the Land Owning Maintenance Model

The decision has affirmed the validity of the land owning maintenance model, regardless of the fact that the reasoning can be called into question in certain respects. It was argued by Andrew Todd that the requirement for burdens to be so precise in identifying burdened property could cause big problems for developers seeking to use the land owning model, given their need for flexibility and the model’s lack of it[12]. However, as Wendy Quinn pointed out[13], the Tribunal only ruled that the burden was invalid on a technicality and upheld the validity of the burden on all other grounds, which thus affirmed the validity of the basis of the model. Stephen Goldie went further[14], asserting that the Tribunal had “endorsed” the model, an argument which has some persuasiveness given the Tribunal’s arguably strained effort to show the burden did not create a monopoly. Whether it was correct to do so remains to be seen. 

A potential alternative that avoids some of the issues inherent in the land owning maintenance model could be the use of development management schemes provided for in Part 6 of the 2003 Act and the Title Conditions (Scotland) Act 2003 (Development Management Scheme) Order 2009. This involves the creation of an owners’ association, a body corporate with the benefits of legal personality such as the ability to own land and be a party to contracts. This association is headed by a manager appointed by the proprietors, who are all members. This model has the benefits of facilitating monetary contributions towards the maintenance of land while also providing the possibility of choosing the provider of the services. It represents a more flexible alternative to having one independent company owning burdened open ground.

 

[1] Marriott v Greenbelt Group Ltd LTS/TC/2014/27 [177]

[2] Ibid [104]

[3] Ibid [105]

[4] Ibid [106]

[5] Ibid [107]

[6] Ibid

[7] Title Conditions (Scotland) Act 2003 s63(4)

[8] G L Gretton and A J M Steven, Property, Trusts and Succession (Bloomsbury Professional 2013), 13.11

[9] Marriott v Greenbelt Group Ltd LTS/TC/2014/27 [101]

[10] Ibid [103]

[11] Clause 3.1 of the burden allowed the respondents to charge “reasonable estate management remuneration and charges incurred …”.

[12] A Todd, “The end of deeds of conditions?”, J.L.S.S. 2016, 61(1), 20-21

[13] W Quinn, “Deeds of conditions: not dead yet”, J.L.S.S. 2016, 61(2), 20-21

[14] S Goldie, “Deeds of conditions: emerging stronger”, J.L.S.S. 2016, 61(4), 32-33,35

What’s So Funny About Parody?: Reviewing the CDPA’s Latest Exception to Copyright Infringement

February 15, 2017

In this article, Jordan Rhodes (4th year LLB) traces the still relatively new exception to copyright infringement where the use of a work is for the purposes of parody. The analysis ultimately recognises that parody is an inherently vague and subjective concept, and offers a perspective from both an owner's economic copyright as well as an author's moral rights...

 

 

What’s So Funny About Parody?: Reviewing the CDPA’s Latest Exception to Copyright Infringement - Jordan Rhodes (4th year LLB)

Introduction

Do you remember three years ago when Miley Cyrus released her controversial Wrecking Ball music video? Can you recall the imagery of demolition equipment that seemed almost inescapable online – and not just with Cyrus astride? Parodies of the clip were perpetually injected into the digital realm immediately following the video’s official release; BBC1 radio host Greg James is a notable example.[1] YouTube parodist Bart Baker has racked up almost 100 million views for his interpretation of the now iconic scene.[2] Evidently, parody embodies a fundamental aspect of today’s online culture and critical humour. And yet, it is remarkable that the law of copyright only seemed to catch up with this phenomenon in the past two years.

In 2014, the UK Parliament amended the Copyright, Designs and Patents Act 1988 (“CDPA”) to include a new exception to copyright infringement where the use of a work is for the purposes of caricature, parody or pastiche. This concept, however, innately conjures a degree of ambiguity: just what exactly can be considered a “parody”? The aim of this paper is to present an overview of the still relatively novel exception and is structured as follows. First, what actually amounts to copyright infringement in the UK will be outlined, in order to highlight the problems encountered in the pre-2014 framework. Secondly, the development of the exception is canvassed, with reference to the Gowers and Hargreaves reviews. Thirdly, the provision itself will be sketched and its interpretation at the Court of Justice of the European Union (“CJEU”) level analysed. Finally, the author will review the parody exception through an intriguing yet fundamental lens: the lens of moral rights. Although the fair dealing exception must be welcomed in light of the digital dissemination of parody works, it is clear that its scope, limitations and compatibility with moral rights remains distinctively nebulous.

Copyright Infringement

A copyright is an owner’s “exclusive right” to use a qualified work.[3] The CDPA restricts copying, issuing copies, renting, lending, performing, communicating to the public and making an adaptation of a protected work.[4] The aforementioned acts are known as “acts restricted by copyright”,[5] and can only be performed by the copyright owner or licensee, hence the right’s “exclusivity”. It should be noted that the owner of a copyright will not necessarily be the author of the work. In the UK, ownership of copyright initially vests in the author,[6] that being the person who creates the work.[7] However, typically this right will be assigned to a publisher or distributor, who will then become the owner of the copyright.[8] Only an owner or licensee has the right to exploit a work, and accordingly, copyright infringement will occur where a person, without authority, engages in, or authorises a third party to engage in, a restricted act.[9] The legislation further provides that a restricted act will only amount to infringement when it relates to “the work as a whole or any substantial part of it”.[10] Those final five words are fundamental; the Act provides that even the use of a “substantial part” of a work will be enough to trigger copyright.

At this very preliminary juncture, the tensions between copyright and parody begin to crystallise. If infringement only requires a substantial taking, it is clear that, without an explicit derogation, parodies can rarely exist. By definition, a successful parody must necessarily evoke the source work.[11] The US Supreme Court has recognised that “when parody takes aim at a particular original work, the parody must be able to ‘conjure up’ at least enough of that original to make the object of its critical wit recognizable”.[12] And yet, in the UK, the parody must do this without reproducing a substantial amount of the source.

The anomaly is illustrated in Schweppes Limited and Others v Wellingtons Limited,[13] where the defendant intentionally parodied the distinguishable Schweppes label for its own brand of bubble bath. The defendant argued that, by bestowing such mental labour and subjecting the source work to such revision, it had effectively produced an original work, thus pushing it beyond the scope of infringement.[14] Falconer J. acknowledged that the bottle was “in the nature of a parody; the article itself is meant to be sold, no doubt, as a joke, and to have the characteristics of a caricature”.[15] However, that did not confer a different test or threshold to which infringement is established: “The sole test is whether the defendant’s work has reproduced a substantial part of the plaintiff’s ex hypothesi copyright work”.[16]

The impact of this line of reasoning is that, without a specific provision exempting parody, or at least permitting it in certain circumstances, the lawfulness of a parody would continue to fall at the mercy of this “substantiality” assessment.[17] Indeed, case law has gone so far as to emphasise that “realistically”; “no real injury is done to the copyright owner if no more than an insignificant part of the copyright work is copied”.[18] Academics have asserted that, following this, “only trivial or insignificant aspects of a copyright work are now beyond the control of the copyright owner”.[19] Once again, successful parodies, which inherently reproduce more than insignificant aspects of their source, would breach s.16. Such a copyright framework essentially rejects any facilitation of the creative, cultural and economic advantages bestowed by parodies.

Development: The Road to S.30A

The era of technological change, bolstering the digitisation of parodies, called for a re-examination of this tension with the pre-2014 rubric. The Gowers Review[20] was the result of a commission by the government, with the aim of evaluating whether UK copyright was “fit for purpose in an era of globalisation, digitisation and increasing economic specialisation”.[21] Based on the needs of technology, Gowers recommended implementing a specific exception for parody, justifying this on the grounds that such an exception could “create value”.[22]

Five years succeeding Gowers, only 25 of the 54 recommendations were actually implemented.[23] Professor Hargreaves subsequently compiled an independent review following a commission by the Prime Minister.[24] The Hargreaves Review recognised that the government should “firmly resit over regulation of activities which do not prejudice the central objective of copyright, namely the provision of incentives to creators”.[25] As a result, the Review recommended an express parody exception,[26] arguing that parody had become a seminal aspect of the lives of private citizens, particularly through social media. Parody, it was reported, “encourages literacy in multimedia expression in ways that are increasingly essential to the skills base of the economy”.[27]

Taking these reviews together, a general trend can be discerned, namely: that in light of the new importance of parody works in digital communication, parodies should be shielded from rigorous copyright enforcement in order to realise their cultural and economic value. This rationale is sound, so long as safeguards are instilled to strike the right balance between the interests of the copyright holder and the parodist. The Intellectual Property Foresight Forum, in its recommendation of a parody exception, argued that, whilst an exception could result in greater use of a copyright work, it would not necessarily result in greater abuse of that work.[28] Other arguments advanced included European harmonisation,[29] upholding freedom of expression,[30] and the licensing system’s inability to facilitate parodies.[31]

Reg.5 Copyright and Rights in Performances (Quotation and Parody) Regulations 2014[32] inserted s.30A into the CDPA, incorporating a parody exception. S.30A came into force on 1 October 2014.

A New Exception: Caricature, Parody and Pastiche

S.30A states that fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright. The provision gives force to Art.5(3)(k) InfoSoc Directive,[33] which permits, but does not oblige,[34] Member States to legislate such an exception in their national copyright systems.

The provision falls within the UK’s so-called “fair dealing” doctrine. In addition to parody, fair dealing encapsulates private study and non-commercial research,[35] criticism or review,[36] and the reporting of current events.[37] The use of a work for any of these purposes will not infringe copyright, so long as the dealing is deemed “fair”. The scope of fairness, however, is not delineated in the CDPA. Instead, the concept calls “for a qualitative assessment”,[38] whereby the courts “are left to judge fairness in the light of all the circumstances”.[39] Lord Phillips in Ashdown v Telegraph Group Ltd[40] noted that “it is impossible to lay down any hard-and-fast definition of what is fair dealing, for it is a matter of fact, degree and impression”.[41] In Hubbard v Vosper,[42] Lord Denning considered various factors that could influence the assessment, namely: (i) the extent of the use, (ii) the use made, and (iii) the proportions of the use.[43] Ultimately, the assessment of fairness is relatively impressionistic – the courts being required to “consider all the circumstances of the ‘dealing’ in the light of the purposes for which alone it is permitted”.[44]

The interpretation of parody came before the CJEU in Deckmyn v Vandersteen,[45] a preliminary ruling from the Brussels Court of Appeal. Deckmyn concerned calendars distributed in Ghent by the far-right Flemish nationalist party, Vlaams Belang. The calendar illustration closely resembled a Suske en Wiske comic cover, comprising a character in a white tunic soaring above a group of people, throwing coins. In the Vlaams drawing, the character was replaced by the Mayor of Ghent, and those picking up the coins below were depicted as people of colour, some wearing veils. The intention was to communicate that, under the mayor’s policies, the residents of Ghent were paying taxes to support non-residents.[46] The case was  remitted to the CJEU for an interpretation of “parody”.

The CJEU ruled that “the concept of ‘parody’ … must be regarded as an autonomous concept of EU law and interpreted uniformly throughout the European Union”.[47] This operates irrespective of the voluntary nature of Art.5(3)(k) InfoSoc.[48] As InfoSoc provides no definition, parody’s “meaning in everyday language” should be applied.[49] First, a parody must “evoke an existing work while being noticeably different from it”; and second, the parody should “constitute an expression of humour or mockery”.[50] Moreover, the CJEU, by reference to Recital (31) InfoSoc, held that the exception’s application “must strike a fair balance” between the copyright holder’s interests and the parodist’s,[51] all circumstances taken into account.[52]

In light of the particular case, the court also noted the discriminatory character of the Vlaams illustration, stating that “attention should be drawn to the principle of non-discrimination based on race, colour and ethnic origin”,[53] and that the right holders have “a legitimate interest in ensuring that the work protected by copyright is not associated with such a message”.[54] In reference to these statements, one could question the extent to which these matters truly are “for the national court to assess”.[55]

Evaluating this “calm and methodical approach”,[56] Seville views the CJEU’s interpretation as offering a “firm structure”, whilst simultaneously conferring “some margin of discretion” on national courts.[57] The author agrees; the CJEU breaks down the meaning of parody into its most fundamental components, leaving the application of that criteria to the national courts on a case-by-case basis. This appears to be the most logical approach to ever coming close to an exact definition: “Parody and satire encompass a wide range of expressive practices”.[58] The CJEU’s definition necessarily provides flexibility, whilst also seeking to secure some degree of certainty and uniformity – elements intrinsic of a harmonised copyright regime. It is maintained that the primary flaw regarding Deckmyn is its isolation as the only significant judgement pertaining to parody. Without a fuller body of case law, it will be difficult and unchartered for parodists, copyright holders, lawyers and judges to engage in the factual characterisation of parody.

Moral Rights

Our analysis of Deckmyn usefully leads us to the final section of this paper, which questions the compatibility of the new parody exception with moral rights. The discussion thus far has reviewed parody through the lens of an owner’s copyright. This exclusive right, however, can be sharply distinguished from an author’s moral rights, which vest only in the author and cannot be assigned to a publisher or distributor. Generally speaking, “moral rights offer legal recognition to an author’s special relationship with his or her own work”; they seek to safeguard an author’s interests that “[transcend] the motive of financial gain”.[59] Moral rights can therefore be contrasted with economic rights, viz. the rights to restrict reproductions or communications of a work. An author’s moral rights, on the other hand, are personal in character,[60] existing independently from the economic copyright subsisting therein. Accordingly, an author who assigns his exclusive right to exploit a work shall fully retain his bundle of moral rights.[61]

The CDPA prescribes four discrete moral rights: the right to be identified as the author[62]; the right to object to derogatory treatment of a work[63]; the right against false attribution[64]; and the right to privacy in private photographs.[65] The second of these rights, otherwise known as the “integrity right”,[66] could present a direct conflict with the parody provision. Fundamental to the integrity right is the entitlement to object to distortions of a work which are prejudicial to the author’s honour or reputation.[67] A parody, by and large, will inevitably implicate the original author’s repute.[68] The question will be whether this implication is indeed prejudicial.[69] Commentators have recognised that “the use of the author’s own work to attack or criticise the author or his or her work may be argued to be a use which is prejudicial to that author’s honour or reputation”,[70] thus infringing his or her moral rights.

Typically, a change of context or affiliation should not be enough to amount to derogatory treatment[71] – there must be some form of distortion, mutilation or other modification.[72] In relation to Deckmyn, however, one might enquire whether the mere association with the discriminatory message was enough to curtail the parody exception. Indeed, the CJEU considered the “legitimate interests of the author”[73] in the necessary balancing exercise, which could tacitly designate a role for moral rights. The strength of this argument, however, is questionable, as Deckmyn was decided under the InfoSoc Directive, which notably excludes moral rights from its scope.[74] Given the case-by-case methodology pertaining to the “fair balance” assessment, however, it is not unreasonable to speculate that courts would, if the facts permitted, take into account moral rights when applying s.30A. One can only hope that the UK courts give moral rights the full and effective weight they deserve in the balancing exercise. For it is noted that: “The legal culture of England … is considered a hostile environment for moral rights”.[75]

Conclusion

As demonstrated, a copyright framework that does not advance any sort of exception effectively blocks any attempt to communicate a parody. The CDPA’s infringement standard of a “substantial” taking, qualified by Lord Hoffmann’s “no more than an insignificant part” test, would almost always prove fatal to a parodist’s case. Thus, a specific carve out is necessary. The justifications for s.30A are evident in the Gowers and Hargraves reviews, namely, the cultivation of economic and cultural value, coupled with the reality of parody popularity through digitisation. S.30A should therefore be welcomed into the UK’s copyright system. S.30A’s qualification of fair dealing is nothing new to our courts, who have the expertise and guidance in case law to make informed and fact-specific assessments as to what amounts to “fair”. As we have seen, the specific meaning of “parody”, however, raises complexities. This lies primarily in the fact that parodies come in various forms and mediums. The CJEU’s interpretation in Deckmyn facilities both flexibility and uniformity, and should therefore be admired. However, in the absence of further case law, the scope and limitations of s.30A remain unclear. Given the different interests at stake, particularly the authors’ moral rights, it will certainly be interesting to see just how the courts develop this still ambiguous and novel legal concept in order to strike a fair and effective balance.

 


[1] Accessible via: https://www.youtube.com/watch?v=aPtfPtr6GgU.

[2] Accessible via: https://www.youtube.com/watch?v=NLtmauJLP-A.

[3] S.16(1) CDPA.

[4] Ibid.

[5] Ibid.

[6] Ibid., s.11(1).

[7] Ibid., s.9(1).

[8] In accordance with s.90(1) CDPA.

[9] S.16(2) CDPA.

[10] Ibid., s.16(3)(a), (emphasis added).

[11] C. Seville, ‘The Space Needed for Parody Within Copyright Law Reflections Following Deckmyn’ (2015) 27:1 National Law School of India Review 1, 2.

[12] Campbell v Acuff-Rose Inc 510 US 569 (1994), [11].

[13] [1984] FSR 210.

[14] The labels were very similar, but due to the completely different markets, namely, soft drinks and bubble bath, there was no question of trademark infringement or passing off. See P. Groves, Sourcebook on Intellectual Property Law (London, 1997), 412.

[15] Schweppes, supra 13, [5].

[16] Ibid.

[17] See also Williamson Music Ltd v The Pearson Partnership Ltd [1987] FSR 97 and Twentieth Century Fox Film Corp v Anglo-Amalgamated Film Distributors (1965) 109 SJ 107.

[18] Designers Guild v Russell William [2000] 1 WLR 2416, [5], per Lord Hoffmann.

[19] R. Deazley, ‘Copyright and Parody: Taking Backward the Gowers Review’ (2010) 73.5 Modern Law Review 785, 788. See also L. Bently & B. Sherman, Intellectual Property Law, 3rd edn. (Oxford, 2008), 186.

[20] A. Gowers, Gowers Review of Intellectual Property (2006).

[21] Ibid., 1.

[22] Ibid., 68.

[23] I. Hargreaves, Digital Opportunity: Review of Intellectual Property and Growth (2011), 6.

[24] Ibid.

[25] Ibid., 8.

[26] Ibid., 49-50.

[27] Ibid., 50.

[28] Intellectual Property Foresight Forum, Taking Forward the Gowers Review of Intellectual Property: Second Stage Consultation on Copyright Exceptions (Newport, 2009), 17.

[29] Ibid., 25.

[30] Ibid., 31.

[31] See the US Supreme Court’s analysis in Campbell, supra 12, [16]. See also Fisher v Dees 794 F.2d 432, 434 (9th Cir, 1986), [14].

[32] Statutory Instruments 2014 No. 2356.

[33] Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society.

[34] Note the passive use of “may”.

[35] S.29(1) CDPA.

[36] Ibid., s.30(1). 

[37] Ibid., s.30(2), unless the work is a photograph.

[38] W.R. Cornish et. al., Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights 8th edn. (London, 2013), 491.

[39] Ibid., 491-2.

[40] [2001] EWCA Civ 1142.

[41] Ibid, [70], quoting Laddie et. al., The Modern Law of Copyright and Designs 3rd edn. (London, 2000), §20.16.

[42] [1972] 2 QB 84.

[43] Ibid., 94.

[44] Cornish, supra 38, 556.

[45] Case C-201/13.

[46] Seville, supra 11, 9.

[47] Deckmyn, supra 45, [15] and [17].

[48] Ibid., [16].

[49] Ibid., [19].

[50] Ibid., [20].

[51] Ibid., [27].

[52] Ibid., [28].

[53] Ibid., [30].

[54] Ibid., [31].

[55] Ibid., [30].

[56] Seville, supra 11, 15.

[57] Ibid., 14.

[58] G.W. Austin, ‘EU and US Perspectives on Fair Dealing for the Purpose of Parody or Satire’ (2016) 39.2 University of New South Wales Law Journal 684, 690. See also, Seville, supra 11, 2: “Parody is a concept of great fluidity, and therefore extremely difficult to delineate or define with any precision”.

[59] M.T. Sundara Rajan, Moral Rights: Principle, Practice and New Technology (Oxford, 2011), 4.

[60] Or “spiritual”, see ibid., 9.

[61] Some jurisdictions allow for the waiver of moral rights. See, for example, s.87(2) CDPA.

[62] S.77(1) CDPA.

[63] Ibid., s.80(1).

[64] Ibid., s.84(1).

[65] Ibid., s.85(1).

[66] R. Platt, ‘A Comparative Survey of Moral Rights’ (2010) 57:4 Journal of the Copyright Society of the U.S.A. 951, 958.

[67] Confetti Records v Warner Music UK Ltd [2003] EWHC 1274 (Ch), [150].

[68] M.T. Sainsbury, ‘Parody, Satire, Honour and Reputation: The Interplay Between Economic and Moral Rights’ (2007) 18 Australian Intellectual Property Journal 149, 155.

[69] Although see Delves-Broughton v House of Harlot Ltd [2012] EWPCC 29, [24], per Recorder Campbell: “I would not say that it was mutilation and I would not say that it was prejudicial to the honour or reputation of the author or director, but I am satisfied that it amounts to distortion of the photograph in question and that the treatment of the work is therefore derogatory”.

[70] Sainsbury, supra 68, 149 and 156.

[71] See Shostakovich v Twentieth Century-Fox Film Corp. 80 N.Y.S.2d 575 (N.Y. Sup. Ct. 1948), affirmed 87 N.Y.S.2d 430 (N.Y. App. Div. 1949).

[72] Art.6bis(1) Berne Convention for the Protection of Literary and Artistic Works.

[73] Deckmyn, supra 45, [31].

[74] Recital (19) InfoSoc.

[75] Rajan, supra 59, 88. See also, Cornish, supra 38, 504.

Hegel's deontological justification for the existence of private property in society

February 15, 2017

In this article, Paul Keenan (4th year LLB) discusses Hegel's deontological justification for the existence of private property in society and the significance thereof for the determination of individual freedom and will...

A discussion on Hegel’s deontological justification for the existence of private property in society and the significance thereof for the determination of individual freedom and will - Paul Keenan (4th year LLB)

 

1.0.

G.W.F. Hegel, in “Elements of The Philosophy of Right” (Hereinafter referred to as Right) outlines a deontological justification for the existence of private property, stressing its importance for the ethical development of the individual.[1] Moreover, he argues that the state should enforce property rights, with the aim of preventing property from devolving into mere physical possession by the strongest individual, which would be an illegitimate regime.[2] Hegel not only suggests that property ownership should be an integral part of any society but that “property is something which…is important for every individual to have, so that there is a basis for overriding ethical concern if some people are left poor and propertyless.[3] He believes that property is the medium through which the will essentially acquires its existence.[4] Without this, the will of a person and their freedom is nothing, i.e. they do not exist as an externalised, rational idea. The will starts in property, and contract allows the individual to alienate and exchange property into which they had initially translated their will, although Hegel’s discussion on contract lies outwith the ambit of this discussion.

1.1.

The essence of private property is outlined explicitly in Right with the assertion that “Not until he has property does the person exist as reason.”[5] The reason why property is so essential in the determination of individual free will for Hegel is because he postulates that, as individuals, we think of ourselves as having the power to insist upon and have a right to an external sphere to “exercise our arbitrary freedom.”[6] This sphere, into which the individual seeks to translate his freedom begins with his external body and extends to every piece of property that person owns. The will, once externalised, is part of that individual’s property. Hegel, in his belief that private property is a “rational necessity” of human history, “took it upon himself to display the rationality inherent in the actuality of private ownership.”[7] This is the crux of Hegel’s theory on the importance of property for individual freedom and will.

1.2.

It is important to consider just what the will is for Hegel and what the translation of that will into an external sphere means (through the dialectic of self-Consciousness). For Hegel, “the will is free” and it exists only in so far as it is free.[8] Without freedom, there is no will; freedom only exists in the will. Once the will is in an external sphere, however, it is separable from the sphere of its own freedom.[9] Putting one’s will into an object is crucial. To think of “I” objectively, and transfer this inner, subjective consciousness/will into an object, to make it mine, means the object ceases to be in opposition to me. My will is in the object, the will which “I” have externalised from my inward realm. The freedom of my will to put itself into an object, “depriving it of its own [will] which it had in opposition to me[10] (3.2 below) is how individuals transfer their will into the property and gain the right therein. Without the freedom of the will to translate into this antithesis of the individual’s own consciousness, the will is not free. It is in this way that property is so essential for individual free will. First, the will must recognise itself. It recognises itself through recognition by and for another. The completed idea of the will, before freedom, is the idea that it has fully realised itself through the awakening (thesis of the dialectic) of self-consciousness.[11] Individuality is only present once the will has realised itself and the will can only truly recognise itself through the recognition of another (in the dialectic). In terms of property, the will of an individual is faced with the will of the object. There is an opposition here, against which the individual must translate their will. The individual, through their freedom of will, overcomes the will of the object to make it their own.

2.0.

Hegel places a particular emphasis on the will of the person as an abstract concept, more than just on the realisation of self-consciousness. Personality only commences when the individual does not have a mere consciousness, but a consciousness of itself as a completely abstract being. There is the idea of this greater consciousness in an external sphere.[12] Inward, subjective consciousness is not enough for personality and free will. Moreover, man cannot thereby externalise his freedom without this recognition from another consciousness. The individual must translate their consciousness into an abstract, external sphere. Without this initial realisation or awakening, man does “not yet have personality.”[13] To exist as an idea, the consciousness of an individual must, according to Hegel, be recognised by another (See 2.2. below).

In order to analyse the will and freedom of a person in an abstract and external sphere it is imperative to first understand Hegel’s approach to the awakening of consciousness. This will culminate in a consideration of the translation of one’s freedom into an external sphere and an analysis of the significance of property and contract in this freedom. Hegel himself, in Science of Logic[14], labelled Phenomenology of Spirit as “propaedeutic” and, so, this work requires examination and understanding before moving on to an analysis of Right to determine the essentiality of private property in the determination of individual freedom and will.[15] The Hegelian approach to self-consciousness must be analysed through the examination of a concept central to Hegelian Theory, namely the dialectic process (Hegel’s Dialectic of Self-Consciousness). It is important to note that Hegel, according to various scholars, never actually used this form of dialectical thought and that this form of the dialectic was conceived by Johann Fichte.[16] However, Hegel did contribute to the development of “systematic dialectical presentation…”[17] The dialectic process, moreover, can be used as a tool to understanding Hegelian philosophy. The Lordship and Bondage in Phenomenology of Spirit suggests that Hegel did use this form of dialectical thought, at least implicitly. Using the process of the philosophy with which Hegel proceeds in Lordship and Bondage and applying it to the discussion of property is necessary to understand Hegel’s theory relating to property and the determination of individual freedom and will.

2.1.

Prior to Right, Hegel produced what is considered to be one of his most important works, “Phenomenology of Spirit” (Referred to from here as Phenomenology). It is here that the dialectic process is elucidated as a form of philosophical thought in the Lordship and Bondage episode. As mentioned in Right, Hegel proclaims that, without the awakening to self-consciousness, the individual does “not yet have personality.” This is consistent with Phenomenology in which he claims that, “Self-consciousness exists in and for itself when, and by the fact that, it so exists for another; that is, it exists only in being acknowledged.”[18] Here Hegel outlines and emphasises the relational nature of subjective consciousness. The desire for recognition is key. Without recognition from “another” in this external sphere there is no existence of the individual will. It is clear in an ontological context that self-recognition as well as mutual recognition is crucial for the starting point. The first step is inward which precedes the desire for recognition, the second step.  Desire will inevitably become the source of conflict and can subsequently be seen as the antithesis of self-consciousness; an opposition. The dialectic process is the idea that everything moves between the dialectic of oneself and another. There are three steps to this process according to Heinrich Moritz Chalybäus.[19]

2.2.

The dialectic process has been considered to operate “as part of a thorough-going, consistently applied, conception of philosophical rationality, centred on the speculative discourse of the science of logic.”[20] The dialectic can thus be used as a means of understanding Hegelian philosophy and the theories therein. In contrast with Kant’s dialectic the Hegelian dialectic is absolutely positive, “since it restores reason to a determinate and objective knowledge.”[21] What is at the epicentre of the dialectic in Phenomenology and Right thereafter is the spirit within the person coming to realise itself. In simple terms, the spirit realises its own self-consciousness. The spirit can only fully recognise itself, not through self-recognition only, but through the recognition from another. The first step is a proposition namely, the Abstract (Or Thesis), followed by the Negative (or Antithesis-“Self consciousness is faced by another self-consciousness; it has come out of itself”[22]) in the form of the contradiction of the thesis. This process is concluded with the resolution of the contradiction through Concrete (or Synthesis).

3.0.

The first step of the dialectic process and the contradiction thereof (antithesis) can be analysed concurrently. The first initial awakening can be seen as a “transcendental synthesis of apperception” and that is a function of self-consciousness.[23] However, this is only in the sense that it meets the consciousness of something other than itself, an object.[24] The relational nature of the dialectic of oneself and another is elucidated once more through the necessity for recognition. For property it is best to understand the dialectic operating between the individual and the object. In order that an individual can become certain of his own self he must supersede the other independent being with which he is faced.[25]

3.1.

In the Lordship and Bondage episode in Phenomenology Hegel provides a clear illustration of his dialectical thought. Self-consciousness, to begin with, is absolutely objective and inward. Thereafter it is confronted with the self-consciousness of another individual. This is the conflict, the opposition. The will is faced with the will of another and it is important to understand how this confrontation is settled. For each of these, prior to the synthesis, they have not yet externalised their will. “They have not yet exposed themselves to each other in the form of pure being-for-self, or as self-consciousness.”[26] Whilst these two conscious beings are aware of their own self-consciousness they have not recognised the other and thus their own self-consciousness is still not complete. Again, the relational significance of recognition is illustrated through this idea. This relational aspect of the Hegelian dialectic is similar to the Platonic idea concerning the essence of objectivity in oneself: “If…we call the essence, or what the object is in itself, the concept and, in the opposite way, understand by object the concept as object, i.e., the way the concept is for another, then the test consists in seeing whether the object corresponds to the concept.”[27] Both Plato and Hegel acknowledge the necessity of the will of one individual existing and being recognised for another. The will of both beings are dependent upon each other.

3.2.

In Lordship and Bondage Hegel postulates that the self-consciousness of each individual proceeds in the form of a “life and death” struggle.[28] In the struggle between two individuals they must risk their own existence through life in order to win freedom. The victor brings his being onto a higher level; not just on the level of being for itself, but “there is nothing present in it which could not be regarded as a vanishing moment.”[29] The individual whose life was not risked, still remains conscious, but lacks the truth and certainty of that consciousness. Such an individual cannot be certain of his own individual free will. The negation of this process is key in the understanding of individual free will.

The Lordship here has the consciousness which is independent and absolutely for itself. The bondage is dependent and exists only for another.[30] Through this he overcomes the will of the other and stands to validate his own consciousness.

This process can be applied to the accumulation of private property. The lord is the power over the object or in the Lordship and Bondage episode, the individual is the lordship. When applied to an object of property the individual supersedes the object and soon thereafter the object exists only for the individual. The individual gains ownership in this way. The individual receives power over the object as he plays the role of the lord in the dialectic between the individual and the object. This can be seen as binary. In property it seems that, for Hegel, there are only two terms; the owning will and the owned object.[31] The lordship is the individual and the will of the individual; the bondage is the object of property. This illustrates how and why an individual must translate his will into an object (external sphere) in order that he might obtain the right therein.

4.0.

For Hegel there are three essential elements of property: possession, enjoyment and the subsequent alienation.[32] Possession is considered to be the first element and concerns the “intersubjectively recognisable identification of a characteristic (object) to a specific person (subject).”[33] Before one can enjoy and subsequently alienate property, one must first have absolute possession of that object. The notion of the intersubjectivity in the recognition of an object from the individual (subject) echoes the philosophical rationality of the dialectic process. What it means to own something and have possession thereof means to have an “external power over it so that the will is embodied in it.”[34] The will of the individual is externalised into the external sphere. Through the dialectic the subjective will of the individual supersedes the object. Having applied the dialectic to this scenario it is clear why man needs property to thereby exist. The negation, which comes back for itself, gives reason to the will of the individual through possession.

Possession of the object alone is not enough for the will of an individual. There must be enjoyment thereof. In the goal of recognition for the subject, the individual must be seen as having his will in the object in an external sphere. “By using the object, the will actualises the fact that the object is a means to the person’s end.”[35] It is through usage or, rather, enjoyment of the object by means of the commixtion of the will of the individual and the object, that the individual can realise fully the freedom of his will in the external sphere.

Conklin highlights the significance of property for the determination of individual freedom and will and how property ownership relates back to the consciousness and will of the individual: “Like the person, property is an abstract and indeterminate concept. Both concepts emanate from the subject's consciousness and the capacity of the subject to bring her into concepts so that she only recognizes her as an abstract person who owns property.”[36] The significance of property on a fundamental level here could not be more explicit for Hegel. It is with the capacity to supersede the object in the antithesis of the dialectic that the individual comes to recognise his own self as an abstract being. This ownership and domination of the object gives reason to the will for Hegel. Alienation, in the form of contract follows on directly from property. Contract is the object of the individual’s externalising their respective wills together. Alienability rights are the means through which one can rid oneself of the object one once desired; the will is not complete until it is capable of being abstracted from the object. Though contract and alienability rights lie outwith the ambit of this discussion, they are still of paramount importance for Hegel in the determination of individual freedom and will. Contract is the next logical step for the will after property.

 

5.0.

In summation, for Hegel property ownership and the alienation of property work concurrently in the fulfilment of individual freedom and will, and are essential for such fulfilment. Without the ability of the individual to transfer their will into and subsequently acquire ownership over the object of property the will of the individual would not be complete. Moreover without the ability of the individual to alienate the property they once transferred their will into the will would not be fully realised.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[1] Jeremy Waldron, The Right to Private Property (Clarendon Press, Oxford) 1988, Page 2

[2] Jeanne Lorraine Schroeder, The vestal and the fasces: Hegel, Lacan, Property, and the Feminine, (University of California Press) (Berkeley · Los Angeles · Oxford) © 1998 The Regents of the University of California, Page 18

[3] ibid, page 343

[4] Friedrich Engels, Karl Marx, Manifesto of the Communist Party (February 1848), Gareth Stedman Jones (Edited by) (Penguin Classics Published 27th June 2002) Page 74 (Notes)

[5] G.W.F. Hegel, Elements of the Philosophy of Right (First published 1820) (Cambridge University Press 1991) Edited by Allen W. Wood Professor of Philosophy, Cornell University, Translated by H.B. Nisbet, Professor of Modern Languages, University of Cambridge and Fellow of Sidney Sussex College), §41, Page 73: Section 1 Property

[6] ibid, Editor’s preface, page 14 (Allen W. Wood)

[7] Jeremy Waldron, The Right to Private Property (Clarendon Press, Oxford) 1988, Page 345

[8]G.W.F. Hegel, Elements of the Philosophy of Right (First published 1820) (Cambridge University Press 1991) Edited by Allen W. Wood Professor of Philosophy, Cornell University, Translated by H.B. Nisbet, Professor of Modern Languages, University of Cambridge and Fellow of Sidney Sussex College), §4, Page 35: Introduction

[9] ibid, §41, Page 73: Property

[10] ibid, §4, page 35

[11] ibid §34, page 67: Abstract Right

[12] ibid §35, page 68

[13] ibid

[14] G.W.F. Hegel, The Science of Logic (Originally published 1820)

[15] Bohnet Clayton . Logic and the Limits of Philosophy in Kant and Hegel (London: Palgrave Macmillan, 2015. ISBN 978-1-137-52174-3 hbk) (Cambridge University Press) Page 189

[16] Y.G. Fichte, Foundations of Natural Right (Cambridge Press 2000) First Published 1797

[17] Fred Moseley and Tony Smith, Marx’s Capital and Hegel’s Logic: A re-examination (Historical Materialism Book Series ISSN1570-1522 ; volume 64)(2014) Page 243

[18] G.W.F. Hegel, Phenomenology of Spirit (Originally published 1807) (translated by A.V. Miller, with analysis of the text and foreword by J.N. Findlay.) (Clarendon Press 1977) Page 111

[19] H.M. Chälybaus, Historical development of speculative philosophy, from Kant to Hegel (from the German of Dr. Heinrich] Moritz Chalybäus ; by the Reverend Alfred Edersheim) (1854)

[20] Michael Rosen, Hegel’s Dialectic and its Criticisms (Cambridge University Press 1982) Preface ix

[21] Bohnet Clayton . Logic and the Limits of Philosophy in Kant and Hegel (London: Palgrave Macmillan, 2015. ISBN 978-1-137-52174-3 hbk) (Cambridge University Press) Page 190

[22] G.W.F. Hegel, Phenomenology of Spirit (Originally published 1807) (translated by A.V. Miller, with analysis of the text and foreword by J.N. Findlay) (Clarendon Press 1977) Page 111

[23] Hans-Georg Gadamer, Hegel's dialectic : five hermeneutical studies / Hans-Georg Gadamer ; translated [from the German] and with an introduction by P. Christopher Smith (Yale University Press 1976) Page 54

[24] ibid

[25] G.W.F. Hegel, Phenomenology of Spirit (Originally published 1807) (translated by A.V. Miller, with analysis of the text and foreword by J.N. Findlay) (Clarendon Press 1977) Page 111

[26] ibid, page 113

[27] Quintin Lauer, A Reading of Hegel’s Phenomenology of Spirit (Fordham University Press 1993, 2nd ed.) Page 39

[28] ibid page 114

[29] ibid

[30] ibid page 115

[31] Jeanne Lorraine Schroeder, The vestal and the fasces: Hegel, Lacan, Property, and the Feminine, (University of California Press) (Berkeley · Los Angeles · Oxford) © 1998 The Regents of the University of California), Page 45

[32] ibid page 37

[33] ibid page 38

[34] ibid

[35] ibid page 43

[36] William E. Conklin, A Review of Hegel’s Laws: The Legitimacy of a Modern Legal Order, (Stanford: Stanford University Press, 2008) Page 120

The Man, The Monster and The Media: a critical analysis of the Glasgow Bin Lorry Crash

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 In this article, Christopher Rae (fourth year LLB student) discusses the legal perspective of the Glasgow Bin Lorry Crash 2015...

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In this article, Peter McEwan (Diploma in Professional Legal Practice) explores the Scottish Criminal Justice System and the way it deals with dock identification while drawing comparisons from other adversarial jurisdictions...

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‘Modern Competition Policy: A Re-evaluation of economic efficiencies’

January 31, 2017

In this article, Robin Van Mulders (LLM in International Competition Law and Policy) discusses the applicability of Robert Bork’s welfare standard ‘economic efficiency’ in modern states. It evaluates the effectiveness of the standard in the context of US antitrust law as well as in the context of EU’s market integration goal and developing countries. The article suggests that the previous belief that economic efficiency as a competition objective is not a one-size-fits-all objective that can be applied and implemented in competition regimes, but that rather, due consideration ought to be given to the jurisdictions stage of economic development and current market structures...

MODERN COMPETITION POLICY: A RE-EVALUATION OF ECONOMIC EFFICIENCIES

Introduction

Since the 1960s the Chicago School has promoted the view that the only goal of US Antitrust law should be the pursuit of competition through economic efficiency.[1] This view has resonated greatly with the international community,[2] and is generally contrasted with the European Union’s goal of achieving ‘workable competition’ i.e. aiming to further the integration of the single market as promulgated in Metro I.[3] These two contradicting views have shaped the development of competition policy, and the question that this paper will aim to answer is whether such pure economic efficiency is a suitable goal. It is argued here that economic efficiency, while suitable and effective in industrialised states, it is not suitable in a variety of circumstances. The argument will be based on an evaluation of Robert Bork’s argument that economic efficiency should be the sole policy objective, followed by a consideration of the impact that the EU’s ‘market integration’ goal, and any impact that the stage of a country’s socio-economic development may have on what other policies may be pursued rather than pure efficiency.

Economic Efficiency

Economic efficiency as a sole objective of any antitrust statute is intuitively appealing for numerous reasons. Its basis in price theory[4] where allocative efficiency is produced under conditions of perfect competition provides a measurable criterion that can be measured and assessed by the use of economic analysis. Robert Bork provides five justifications on why the criterion is superior to others, it:

  • assures legal certainty,
  • it is politically neutral,
  • maintains the integrity of the legislative process,
  • requires real, rather than abstract economic distinctions, and
  • avoids arbitrary and anti-consumer rules.[5]

An ancillary benefit of the criterion is that it produces clear objectives for competition to pursue. Since the the antithesis to perfect competition, and as such allocative efficiency, is monopoly, where market power can be exercised to raise prices above the competitive level, behaviour that is prone to strengthen market power ought to be discouraged. This is evident since the majority of competition regimes have some form of regulation of dominant corporations and implement a cartel offence.[6] Furthermore, the treatment of horizontal agreements in general across jurisdictions, in particular the US and EU, is consistent. In the US they have been considered per se illegal since the introduction of the Sherman Act in 1890.[7] In the EU any form of coordinated practice is considered as having as its ‘object’ to restrict competition[8] and is a ‘hard-core’ restriction under the Block Exemption Regulation.[9] The uniformity of approach across jurisdictions illustrates the clarity that comes from using a measurable criterion like economic efficiency.

The mentioned benefits, however, do not suggest that it is superior in every respect. Substantial criticism can be attracted on the basis that the theory is informed by static, rather than dynamic, analysis. This means that the model of perfect competition does not take into account the necessary profit levels required to achieve long term economic investments in research and development,[10] and is blind to the implications that luxury goods have on a demand curve.[11]

Furthermore, recent research illustrates the lack of ability that US antitrust policy has in terms of achieving distributive effects or tackling inequality. In their article,[12] Baker and Salop argue that the efficiency focused antitrust policy has contributed to increasing corporate market power, and as such contributes to increasing inequality. They point to the fact that ‘median income and wealth both declined in real terms between 2010 and 2013’ while ‘the real income of the 1% grew by 31.4%.’[13] They also point to the similarity of the increasing wealth inequality, with the ‘bottom 90% has steadily declined since the mid-1980s, while the wealth share of the 0.1% has grown from 7% in 1989 to 22% in 2012’[14]. The steady increase in wealth divergence suggests that increased economic efficiency may not work in the interest of consumers in the long run, but will actually only contribute to the wealthiest of the wealthiest.

EU and the Single Market goal

When assessing the goals of EU competition policy, and whether it should pursue only economic efficiency, it is important to consider the context in which it was created. Competition rules were envisaged as early as the European Coal and Steel Community 1952 Articles 65 and 66 in relation to coal and steel, and subsequently implemented in the  Treaty of Rome 1958 in Articles 85 and 86 EEC. These rules are currently found in Article 101 and 102 TFEU. They have since Metro I[15] been interpreted according to Art 3(3) of the Treaty on the EU (TEU) to provide for ‘workable competition’, meaning competition necessary for the objectives in the Treaties to be achieved.[16]

Part of the difficulty with comparing the US with the EU in a competition context is the fact that you are comparing, in common terms, apples and oranges. While the US is a full-fledge federal state, the EU is a supranational organisation and as such does not in my view fulfil the preconditions that are necessary in order to ably implement pure economic efficiency as a policy goal. This is particularly evident in the context of the EU’s approach to vertical agreements which differs starkly from that promoted in the US Supreme Court decision Leegin Creative Leather Products, Inc v PSKS, Inc.[17] where they removed the per se illegality rule against resale price maintenance in favour of a rule of reason approach. The Court of Justice has long held a particular skepticism against the general pro-competitive nature of vertical agreements[18] due to their ‘teleological approach’ towards market integration of the single market.[19] This goal has been safeguarded through early cases such as Consten & Grundig[20]  and reaffirmed recently by the Court of Justice in GlaxoSmithKline v Commission (GSK).[21] The necessary pre-condition that this approach to vertical agreements is trying to remedy is that the EU does not have full market integration and as the CJEU time and time again has successfully shown, as in Consten & Grundig and GSK, vertical agreements are prone to lead to barriers of trade between Member States, something which the EU is intrinsically attempting to avoid.[22]

The benefits of this additional goal, outwith economic efficiency, are plentiful. As part of a substantial internal market covering 500 million people, the EU is an attractive market for external corporations to invest in and establish a competitive foothold anywhere across the union. It also attracts liberal trade deals, intended to bolster competition for the benefit of economically efficient companies that can serve to lower prices and lead to new products on the markets to the benefit of consumers.[23] Furthermore, the breadth and diversification of markets across the EU means that larger corporations may achieve economies of scale as a result of common investment in projects. Consider the Airbus Industrie[24] joint venture, now competing effectively in several commercial airline markets against the American National Champion Boeing.[25] The access to these macro-economic benefits illustrate the benefit that an ancillary goal such as market integration may have, despite its negative implications in preventing pro-competitive vertical agreements.

Developing Countries – Calls for Unique Approaches

A relevant consideration on the question of objectives of competition policy concerns the past 20 years experience of ‘legal [transplanting]’ competition regimes alongside the underlying policy objectives of either EU or US approaches.[26]  The relevant question arising from this is whether this is appropriate in developing countries, where it might be more relevant to focus on issues of enforcing limited competition issues such as cartels or abuses of dominant positions in markets.[27]

Research considered in two separate articles, one by Evenett[28] and one by Sing,[29] suggest that it is naïve to implement economic efficiency as the sole objective of competition policy, and that dynamic and stable competition may be more appropriate.[30] It is pointed out that until the 1990’s, there were only 16 developing countries which operated under a formal competition policy, and the suggested reason stated was that it was because it was not necessary as majority of countries had substantial state control over the economy, which would regulate any anti-competitive behaviour immediately.[31] The research thus suggests two main issues to consider when implementing competition policy. Firstly, what is the institutional design of the country and secondly, how do we ensure that the competition policy is pursued and enforced, rather than merely being unenforced legislation. William Kovacic suggest that the best way of implementing an effective policy objective is by implementing simple competition rules, targeting cartels and natural monopolies, especially in countries where the state has had a great influence in structured market planning as in former communist and socialist states.[32]

An example of how this policy can be implemented is illustrated by the Chinese Anti-Monopoly Law 2007. While Article 1 of the legislation sets out numerous goals, including improving economic efficiency, they show deference to the historical emphasis on large state-owned enterprises in Article 7, thus exempting their legitimate business activities from the law. It is a compromise in the move to liberalising a former completely state-operated market, and shows a possible way in which the state can pursue several objectives.

Conclusion

In summary, this paper has questioned whether it is suitable to pursue economic efficiency as a sole objective in any given jurisdiction. While economic efficiency has been substantially pursued in a US context, and to some extent in an EU context, it is not a ‘one size fits all’ objective. Due regard needs to be had to alternative objectives, especially with regard to supranational organisations which do not have full market integration as well as developing countries which may need to pursue general market liberalising policies where competition policy is a means to an end, rather than pure economic efficiency in itself.

                      

Bibliography

Books

Robert Bork, The Antitrust Paradox: A Policy at War with Itself, p. xi. (1993: The Free Press, New York).

Treaties, Legislation and Regulations

Treaty on the European Union

Treaty on the Functioning of the European Union (TFEU)

Sherman Act 1890

Anti-Monopoly Law 2007

Regulation 330/2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices

Cases

Etablissements Consten SA and Grundigverkaufs-GmbH v EEC Commission [1966] ECR 429

GlaxoSmithKline v Commission [2010] 4 CMLR 2

ICI v Commission (Dyestuff) [1972] ECR 619

Leegin Creative Leather Products, Inc v PSKS, Inc 551 US 877 (2007)

Commission Decision, Boeing/McDonnell Douglas Merger (1997) 2598

Metro-SB-Grossmarkte GmbH & Co. KG v Commission [1977] ECR 1875, [1978] 2 CMLR

United States v Addyston Pipe & Steel Co 85 Fed 271 (1898)

United States v Joint Traffic Association 171 US 505 (1898)

Journal Articles

Jonathan B. Baker & Stephen C. Salop ‘Antitrust, Competition Policy and Inequality’ (2015) 104 Georgetown Law Journal, 1

Simon J Evenett, (from Gal et al.) ‘Competition law and the economic characteristics of developing countries’ 15

Alison Jones ‘Analysis of agreements under US and EC antitrust law – Convergence or divergence?’ (2006) 51 Antitrust Bull 691

William E. Kovacic ‘Designing and Implementing Competition and Consumer Protection Reforms in Transitional Economies: Perspectives from Mongolia, Nepal, Ukraine, and Zimbabwe’ 44 DePaul L. Rev 1197 (1995)

Barak Y. Orbach ‘The Antitrust Consumer Welfare Paradox’ (2010) 7(1) J Comp. L & Econ 133

Ajit Sing ‘Competition and Competition Policy in Emerging Markets: International and Developmental Dimensions’ (UNCTAD/GDS/MDPB/G24/18, 2002)

George Telser ‘Why should Manufacturers want Fair Trade?’ (1960) 3 J Law & Econ 86

 

Practice Guidance and Websites

ICN, ‘Recommended Practices on Competition Assessment’ (ICN Doc 978), p.1 (Access on 20th August 2016)

TTIP (http://ec.europa.eu/trade/policy/in-focus/ttip/about-ttip/ (Accessed on 20 August 2016)

CETA (http://ec.europa.eu/trade/policy/in-focus/ceta/ (Accessed on 20 August 2016)

Airbus info: (https://en.wikipedia.org/wiki/Airbus) (Accessed on 20 August 2016)

 

[1] Robert Bork, The Antitrust Paradox: A Policy at War with Itself, p. xi. (1993: The Free Press, New York).

[2] Established ‘best practice’, See:  ICN, ‘Recommended Practices on Competition Assessment’ (ICN Doc 978), p.1.

[3] Metro-SB-Grossmarkte GmbH & Co. KG v Commission [1977] ECR 1875, [1978] 2 CMLR 1.

[4] For explanation of price theory, see Bork (n 1), p. 90-91.

[5] Ibid, p. 81.

[6] On Abuse of Dominant Position, See: Article 102 Treaty on the Functioning of the European Union (TFEU); §2 Sherman Act 1890 or Article 6 of Anti-Monopoly Law 2007 (AML) (China). On Cartels, See: Article 101 TFEU, §1 Sherman Act 1890 or Article 3 AML.

[7] For example see: United States v Addyston Pipe & Steel Co 85 Fed 271 (1898); United States v Joint Traffic Association 171 US 505 (1898).

[8] ICI v Commission (Dyestuff) [1972] ECR 619 (Concerted Practices).

[9] Regulation 330/2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices, Article 4.

[10] Barak Y. Orbach ‘The Antitrust Consumer Welfare Paradox’ (2010) 7(1) J Comp. L & Econ 133, 141.

[11] Ibid, 153-154.

[12] Jonathan B. Baker & Stephen C. Salop, ‘Antitrust, Competition Policy and Inequality’ (2015) 104 Georgetown Law Journal, 1.

[13] Ibid, 1.

[14] Ibid, 3.

[15] (n 3).

[16] Ibid, at

[17] 551 US 877 (2007).

[18] On pro-competitive nature, see: George Telser ‘Why should Manufacturers want Fair Trade?’ (1960) 3 J Law & Econ 86.

[19] Alison Jones, ‘Analysis of agreements under US and EC antitrust law – Convergence or divergence?’ (2006) 51 Antitrust Bull 691, 741.

[20] Etablissements Consten SA and Grundigverkaufs-GmbH v EEC Commission [1966] ECR 429.

[21] [2010] 4 CMLR 2.

[22] See Art 3(3) TEU, Arts 34-46 TFEU.

[23] See EU’s ongoing trade negotiations, TTIP (http://ec.europa.eu/trade/policy/in-focus/ttip/about-ttip/ and CETA (http://ec.europa.eu/trade/policy/in-focus/ceta/ (Both accessed on 20 August 2016).

[24] https://en.wikipedia.org/wiki/Airbus (Accessed on 20 August 2016).

[25] For the previously competitive concerns, See: Com Decision (1997) 2598 Boeing/McDonnell Douglas Merger.

[26] Simon J Evenett, (from Gal et al.) ‘Competition law and the economic characteristics of developing countries’ 15, 17-18.

[27] Ibid, 17.

[28] Ibid.

[29] Sing, A. ‘Competition and Competition Policy in Emerging Markets: International and Developmental Dimensions’ (UNCTAD/GDS/MDPB/G24/18, 2002).

[30] Ibid, vii.

[31] Ibid, 6.

[32] William E. Kovacic. ‘Designing and Implementing Competition and Consumer Protection Reforms in Transitional Economies: Perspectives from Mongolia, Nepal, Ukraine, and Zimbabwe’ 44 DePaul L. Rev 1197 (1995), p. 1203-1206.

 

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