As I explained in this post, I am no longer maintaining this blog. That’s because it has evolved into a new blog: Public Law for Everyone. The intended readership of the new blog is not limited to – but it certainly includes – those who may be thinking about studying Law at university. If you are in that position, then this post – linking to some videos I have recorded introducing the subject of Public Law – may be of particular interest. You will also find a resources section on Public Law for Everyone aimed at those who are thinking of studying Law. In addition, all of the content from Applying for Law has been copied across to the new blog.
The Applying for Law blog will become inactive (and I think inaccessible) shortly. If you are following it by email, you may therefore want to begin to follow Public Law for Everyone instead. You can sign up so that new posts are automatically emailed to you (via the “sign up for email updates” box on the right-hand side). In addition, or instead, you can follow me on Twitter.
Thanks for reading Applying for Law. I hope you will also find my new blog of interest.
When I first started writing this blog last year, I was brand new to blogging (and to Twitter: which I joined simply in order to be able to tweet links to blog posts). Since then, the blog – along with my (still limited) grasp of this part of the online world – has evolved. In particular, I have come to realise that blogging and Twitter are increasingly important ways in which academics can engage with one another, with students, and with the wider world.
The original intention behind my blog was to open up the world of Law – and academic Law in particular – to people who are thinking of applying to study Law at university. I still think that that is important, and that will remain part of what I try to do via my blog. But I now also appreciate that blogging has a real role to play in relation to my academic work, including as a means by which to float ideas at an early stage and to offer commentary on current events.
So I am retiring “applying for law”. The new version of the blog is called “Public law for everyone”. The new name reflects the facts that the focus will be on my key area of academic interest – public law – and I that I will be writing on that topic in ways that will, I hope, be accessible and of interest a range of people. Some posts will continue to be aimed at the uninitiated, such as prospective Law students. Other posts will be more specialised or technical in nature, and as such will be aimed at other public lawyers and law students. As with the original incarnation of this blog, the new iteration will remain a work-in-progress, and will no doubt continue to evolve.
The old URL (http://applyingforlaw.org) will continue to work for a while. The new address is http://publiclawforeveryone.wordpress.com
Professor Graham Virgo (left); Lord Sumption (right)
This week, the Law Faculty at Cambridge University will host a debate between Lord Sumption, a Justice of the Supreme Court, and Graham Virgo, who is a Professor at the Faculty here. The debate was sparked by remarks made by Sumption last year. He is reported to have said:
I think that it is best not to read law as an undergraduate … The problem is that we have a generation of lawyers, and this applies to solicitors as well as barristers, who are coming into the profession with much less in the way of general culture than their predecessors. It is very unfortunate, for example, that many of them cannot speak or read a single language other than their own …
Most arguments which pretend to be about law are actually arguments about the correct analysis and categorisation of the facts. Once you’re understood them it’s usually obvious what the answer is. The difficulty then becomes to reason your way in a respectable way towards it. That’s why the study of something involving the analysis of evidence, like history or classics, or the study of a subject which comes close to pure logic, like mathematics, is at least as valuable a preparation for legal practice as the study of law.
Appreciating how to fit legal principles to particular facts is a real skill. Understanding the social or business background to legal problems is essential. I’m not sure current law degrees train you for that, nor really are they designed to. This is not a criticism of the course. It’s simply a recognition of the fact that a command of reasoning skills, an ability to understand and use evidence, and broad literary culture are all tremendously valuable to any advocate. If you don’t have them you are going to find it difficult to practise. If you don’t know any law that is not a problem; you can find out.
It is unclear (from these reported remarks) why Sumption does not think that studying Law teaches “command of reasoning skills” or an “ability to understand and use evidence”. Nor is it clear why Sumption thinks that those who study Law lack an awareness of broader, cultural issues. Perhaps he assumes – mistakenly – that Law students spend their time locked away reading dusty tomes. The reality, of course, is that all university student specialise – and that with specialisation comes a focus on some things and not on others. But this rather misses one of the fundamental points of a university education: namely, that students do not spend their whole time engaging only with their own subject. One of the great strengths of studying at university is the opportunity to engage – through extra-curricular activities, public lectures, debates, and simply interacting with a cross-section of students – with a broad range of academic and other disciplines. To suppose, therefore, that Law students know nothing beyond the Law suggests a very narrow view of the nature and purpose of university study.
If accepted, then the argument set out above helps to establish that studying Law is not a bad thing, in that it does not preclude awareness of and engagement with the broader cultural matters that are of concern to Sumption. But is studying Law at university a positively good thing? Sumption appears to believe that ignorance of the Law (as opposed, say, to ignorance of “broad literary culture”) is unproblematic. Not knowing “any law”, he says, creates no difficulty – because “you can find it out”. The implicit suggestion is that Law is, in some sense, a straightforward matter that can simply be ascertained by consulting a book: and that students need not spend three years at university learning things that they could just as easily pick up as and when they need to.
Yet by adopting this stance, Sumption appears to fail to appreciate the nature of Law as an academic subject as it is taught in universities. One of the first things that Law students at Cambridge (and doubtless elsewhere) are told is that learning the Law is not simply about picking up and memorising factual information about the applicable rules. Rather, learning the Law – and learning to be and to think as a lawyer – is, in part, about appreciating that not all legal questions have clear-cut answers; that the meaning of a statutory text or a judicial decision may vary depending upon the perspective from which the matter is viewed; and that underlying the technical rules with which all lawyers have to grapple is a deeper layer of issues that engage such realms as morality, philosophy and politics.
Does this mean that people who have studied Law as a degree subject become better lawyers? Perhaps; although there are many excellent lawyers who did not study Law at university (Sumption being one of them). But what it clearly does mean is that Law, studied as an academic subject at university, is a rich and fascinating subject: and that even if Law can, at some level, be picked up in the way Sumption suggests, studying Law at university has far, far more to offer than a grasp of dry, technical rules.
In this week’s Cambridge Law Faculty debate, Sumption will defend the proposition: “Those Who Wish to Practise Law Should Not Study Law at University”. Virgo will oppose. For a foretaste of Virgo’s arguments, take a look at the two videos below, in which he argues that prospective lawyers should study Law, and that a Law degree also has a great deal to offer people who intend to work in other sectors. If you want to attend the debate, you will find more information about it here.
In this video – part of the Cambridge Law Faculty’s Law in Focus series – Professor John Spencer discusses difficulties relating to the system of trial by jury and suggests ways in which the delivery of justice might be improved. Professor Spencer’s talk was prompted by the discharge of the jury in the Vicky Pryce case, on which see this post.
Long grass: which is where the report of the Bill of Rights Commission is likely to end up
In December 2012, the Report of the Commission on a Bill of Rights was published. The Commission was established by the Coalition Government to consider how human rights should be protected in UK law – and, in particular, whether the Human Rights Act 1998 should be repealed and replaced with a new UK Bill of Rights. The Report was somewhat underwhelming – not least because the Commission was so divided. As a result, very little by way of real consensus as to the way forward emerged from the Report.
Shortly after the publication of the Report, I posted a piece entitled “Ten things you wanted to know about the Bill of Rights Commission’s report but were afraid to ask”. I have now finished writing a longer article, entitled “A Damp Squib in the Long Grass: The Report of the Commission on a Bill of Rights”. The abstract of the article, which gives an idea of its scope and of the view I take of the Commission’s Report, is as follows:
In December 2012, the Commission on a Bill of Rights, established by the UK Government, issued its final report. The Report advances very limited, inchoate proposals for a UK Bill of Rights that are essentially superficial in nature. The Report fails to grapple with the fundamental questions that would naturally fall to be confronted as part of a serious debate about the future direction of human rights protection in the UK. The failure of the majority clearly to articulate what it understands a Bill of Rights to be renders vacuous its recommendation that such legislation be adopted in due course. While the proposals contained in the Report are highly unlikely to be implemented in the foreseeable future, the shortcomings of the Report – and of the process that yielded it – contain important lessons for how future debates of this nature ought to be conducted.
The article will be published in the second issue of the 2013 volume of the European Human Rights Law Review. However, the text of a near-final draft of the article can be read here.
There is a great deal of discussion in the media today about the merits or otherwise of trial by jury, following the dismissal of the jury in the Vicky Pryce case. A new trial will take place next week. Vicky Pryce, the ex-wife of ex-Cabinet Minister Chris Huhne, was being tried for perverting the course of justice: it is alleged that she accepted penalty points (for speeding) that ought to have been added to Huhne’s driving licence. Huhne pleaded guilty to perverting the course of justice, but Pryce is pleading “marital coercion” in her own defence.
Yesterday, the trial judge, Mr Justice Sweeney, discharged the jury in the light of a series of questions that the jury put to him. For example, the jury asked: “Can a juror come to a verdict based on a reason that was not presented in court and has no facts or evidence to support it, either from the prosecution or defence?” Explaining his decision to discharge the jury, the judge said:
“I don’t ever recollect getting to this stage in any trial, even in far more complicated trials than this one, and, after two days of deliberations, a list of questions of this very basic kind illustrating that at least some jurors do not seem to have grasped it … This is not jury misconduct, this is not irregularity, this is a jury which has not, it appears, understood its function.”
Of course, it is entirely possible that many of the jurors understood their role perfectly—and that the questions were manifestations of a disagreement between jurors. Nevertheless, the case inevitably places trial by jury under the microscope. Yet much of the discussion of juries in the media today is pretty superficial and poorly informed. You might therefore want to find out more about how juries work in order to arrive at your own, informed view about the merits of the system.
“the trial involves citizens calling one of their number to account, and asking for an explanation from that individual for their behaviour. It seems to me that a basic duty of reciprocity (as well as the need to retain what Duff refers to as ‘moral standing’), would require those who do the calling to account, to give an account of their own decision-making.”
I have argued elsewhere that public authorities should be legally obliged to give reasons for their decisions. It seems to me that at least some of the arguments in favour of public authorities doing so can be applied to juries—not least because juries, when determining criminal liability, are wielding the coercive power of the state in a particularly acute form.
Finally, for a longer read, try this article by Fergal Davis of the University of New South Wales. He argues that trial by jury plays an important political, democratic role: “Public involvement in the process of determining guilt or innocence has the potential to increase transparency and legitimacy in the criminal justice system.” He goes on to say: “In the context of the criminal trial, the body that issues the verdict must represent the population and have a mandate. While a non-jury court may fulfil both criteria, the jury is more likely to appear to have both representative capacity and mandate because of its make-up.”
In this week’s Mail on Sunday, the Home Secretary, Theresa May, published an article strongly criticising judges for allowing some foreign criminals to remain in the UK on human rights grounds, contrary (as she sees it) to instructions that Parliament issued to judges about how such cases should be decided. In her article, the Theresa May says that because judges have (she thinks) ignored those instructions, they should now be enshrined in primary legislation – an Act of Parliament. This, she says, will give the judges no choice but to do as they are told: because Parliament is sovereign, argues May, it can make whatever laws it wishes, including laws that require judges to decide cases in a way that is incompatible with fundamental human rights.
In this post on the UK Human Rights Blog, I respond to the Home Secretary’s article. I argue that her position is symptomatic of a broader malaise in public discourse concerning human rights. First, by assuming that Parliament is free to enact such legislation she fails fully to acknowledge that the UK is bound in international law by human rights obligations, such as those found in the European Convention on Human Rights. And, second, the Home Secretary assumes that there is necessarily a tension between judicial enforcement of human rights and respect for democracy; in adopting this position, she implicitly assumes a particular, and arguably inadequate, view of the nature of democracy.
The post is (I hope) written in a way that will be accessible to non-lawyers as well as lawyers. But there is one point that perhaps requires explanation. Towards the end of the post, I refer to the “margin of appreciation”. This principle was developed by the European Court of Human Rights in the case of Handyside v UK. It recognises that it will sometimes be appropriate for the Court to give a degree of latitude to individual States when it comes to deciding whether it is acceptable to limit an individual’s right in order to achieve some conflicting public interest. (In Handyside, the balance that fell to be struck was between the individual’s right to freedom of expression and the State’s wish to restrict access to certain forms of pornography in the interests, as it saw it, of public morality.) However, the point I make in my post is that there are limits to this. Where appropriate, the European Court will attach a degree of respect to the State’s view about whether restricting a right is necessary in the public interest: but this does not mean that States have an entirely free hand. The basic point, then, is that the legislation envisaged by the Home Secretary might well (indeed, almost certainly would) fall outside the UK’s margin of appreciation, thereby making it unlawful under the European Convention on Human Rights.
There is a great deal of discussion in the media today about the merits or otherwise of trial by jury, following the dismissal of the jury in 
