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- Tales from Tripos
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- From our Foreign Correspondents
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David Richards (1970) became Lord Justice of Appeal from November 2015; and became Privy Counsellor from 2016.
Greg Sinfield (1977) became President of the First-tier Tribunal, Tax Chamber from October 2017.
Rabinder Singh (1982) has been appointed a Lord Justice of Appeal from October 2017.
Jonathan Turner (1983) has become a Deputy High Court Judge.
Joanna Vincent (1992) became a Circuit Judge from November 2016.
Sarah Worthington (e2011) became a Deputy High Court Judge from May 2017.
QUEEN’S COUNSEL 2017 ANNOUNCEMENTS
Robert-Jan Temmink (1992) – Quadrant Chambers
Ivan Hare (Fellow 1999-2004) – Blackstone Chambers
The last year was a sad one, bringing a number of significant departures from the Trinity law family.
(1953 – 2017)
Nicholas Wall (1964) (1945 – 2017)
(1928 – 2017).
OTHER MEMBERS’ NEWS
Federico Marini Balestra (2006) has published two articles, Margin squeeze overstretched? A comment on the European Commission’s decision in Slovak Telekom, European Competition Law Review, 5, 2016, and with R. Tremolada, Digital Markets and Merger Control: Balancing Big Data and Privacy against Competition Law, A Comment on the European Commission’s Decision in the Microsoft/LinkedIn Merger, European Competition Law Review, 7, 2017.
Tim Clement-Jones (1968) will become Chair of the Council of Queen Mary University London from August 2018; and he became Chair of the Board of Ombudsman Services from July 2017.
Peter Freeman QC (1967) has been appointed Chair of the Human Fertilisation and Embryology Authority Appeals Committee from March 2017.
Arturo John (1998) has been appointed Head of UK & Continental Europe Money Laundering Investigations within BNP Paribas’ Europe Hub in Lisbon, Portugal.
Ralph Kirby (1969) became Professor Emeritus National Yang-Ming University, Taiwan from February 2017.
Amy Ludlow (2005) together with Dr Ruth Armstrong, has been involved in a pioneering, award-winning project to teach university students alongside prisoners called Learning Together. See also below a link to her recent appearance on Radio 4, talking about the public sector pay-cap in the prison service context.
Anthony Lester QC (1957), has published a new book, Five Ideas to Fight For: How Our Freedom Is Under Threat and Why It Matters.
Wenhua Shan (1999) has been seconded to the Supreme People’s Court as a Vice- President of the Judicial Case Academy. She has also been designated Conciliator to the International Centre for Settlement of Investment Disputes (ICSID).
Robert-Jan Temmink (1992) has been elected to the Court of the Merchant Taylors’ Company from June 2017.
Stephen Toope (1983), Honorary Fellow and international law scholar, was formally admitted as the 346th Vice-Chancellor of the University of Cambridge earlier this month. You can read the full text of his inaugural address and view his message. We are delighted to welcome Stephen back to the Cambridge-resident Trinity legal family!
Barend van Leeuwen (2005) was appointed as Assistant Professor in EU Law at Durham Law School from September 2017.
New Law Fellow: Dr Benjamin Spagnolo (e2016)
In October 2016, Trinity welcomed a new teaching Fellow in Law, Dr Benjamin Spagnolo. Ben completed degrees in law and in Latin and French at the University of Western Australia, before qualifying for legal practice and working as a government lawyer in Western Australia. He was awarded a Sir Robert Menzies Memorial Scholarship in Law to read for the BCL at Oxford, in 2006-2007, after which he served as Associate (judicial assistant) to the Hon. Murray
Gleeson AC, then Chief Justice of Australia, in Canberra. Ben returned to Oxford to read for the MPhil and then, as a Clarendon Scholar, the DPhil under the supervision of Professor John Finnis FBA. His doctoral thesis was published in 2015 as a monograph entitled The Continuity of Legal Systems in Theory and Practice and launched in Perth, Western Australia, by the Hon. Robert French AC, Chief Justice of Australia. The book engages with abstract legal theory and the concrete phenomena of Imperial and Australia constitutional law and history to examine a persistent and fascinating question about the continuity of legal systems: when is a legal system existing at one time the same legal system that exists at another time?
While a graduate student at Magdalen College, Oxford, Ben taught constitutional law and Roman law, including as a college lecturer at University College, St John’s College and Magdalen College, where he was also Sub-Dean, responsible for out-of-hours welfare and discipline. In addition, Ben served as Mooting Coordinator for the University of Oxford Faculty of Law, drawing on his extensive experience as a competitor and judge in a range of national and international competitions, including the 2003 Philip C Jessup International Law Moot Court Competition, which his team won and in which Ben was awarded the prize for the best oralist in the World Championship Round. He has already been called upon to help train judges and to adjudicate a dispute in one of the Cambridge University Law Society’s mooting competitions.
Ben was elected Penningtons Student (Fellow) and Tutor in Law, Christ Church, Oxford in 2012, where he taught teaching constitutional law, administrative law and Roman law. He taught the equivalent subjects for Trinity last year but, in 2017-2018, will shift focus away from administrative law to take up supervising and lecturing in Civil Law II, Cambridge’s advanced Roman law paper. In joining Trinity from our sister college in Oxford, Ben follows the example of Jo Miles, who served in a similar capacity at Christ Church before crossing over to the light side.
Philip Allott (1955, e1973)
Professor Emeritus of International Public Law
In August Philip Allott, Professor Emeritus of International Public Law, gave the inaugural Walter Schücking Lecture at the Walter Schücking Institute for International Law at the University of Kiel in Germany. Schücking (1875-1935) was a leading German international lawyer and a Judge of the Permanent Court of International Justice. The title of the lecture is Beyond War and Diplomacy. A Giant Step for Mankind. It will be published in English in the German Yearbook of International Law. Philip argues that war, with the old-fashioned form of diplomacy that sustains it, is not merely a reflection of human nature but a gruesome survival from earlier states of the human mind and earlier forms of human society. Once again he picks up the ancient idea of a universal human society, containing all subordinate societies, including ‘nation-states’, and all human beings. They all find that they have a second purpose beyond their own survival and flourishing, namely their contribution to the survival and flourishing of the whole world on which they themselves depend more than ever in the globalising world of the twenty-first century. The lecture was followed by a two-day workshop in which fourteen young scholars from many countries explored the significance of his recent book Eutopia. New Philosophy and New Law for a Troubled World which has now been published in paperback. There will be a seminar about the book at the London School of Economics in November.
Philip contributed further opinions on the legal aspects of UK withdrawal from the EU on the websites of the UK Constitutional Law Association, the European Journal of International Law, and the European Reporter, and in letters to The Times.
He described his own participation in the negotiation of UK accession to the European Communities (1971-73), as a Foreign Office legal adviser, in his speech at a College dinner on 3 June to mark his eightieth birthday. The compelling address that he gave on that occasion surveyed his extraordinary and unique career in the law via a series of snapshots: including his encounter with Prisoner No. 7 (better known to the world as Rudolf Hess) and his EU- related work, to his navigation of the Law of the Sea and extensive academic writing on his philosophy of Social Idealism.
Catherine Barnard (e1996)
Professor of European Union Law
My life has been dominated by Brexit. Working with ‘UK in a Changing Europe’ and its indefatigable director, Anand Menon, we have done town hall events, MP briefings, public roundtables (see picture), media briefings, interviews with radio and tv, and online discussion forums. The public engagement work has shown me that there is an insatiable appetite for Brexit- related information. Decades of teaching have helped me to learn how to explain complex matters simply. But I have also had to learn how to reduce that knowledge to bite-size nuggets. Concepts which take a whole supervision worth of discussion have to be reduced to 40 seconds. But I have also done longer pieces, including recording a special edition of Law in Action, with my colleague Mark Elliott, on the Gina Miller case in my room in Great Court (see picture).
The reality is that Brexit has been a steep learning curve for everyone, even those who consider themselves ‘experts’. We have had to learn something of the nuts and bolts of how the Customs Union works in practice. What about the open skies agreement? The
Treaty provisions only tell such a small part of the story.
And yet the undergraduates still need to be supervised. An understanding of the constitutional and substantive structure of EU law will continue to stand them in good stead. The EU will continue to be our nearest neighbour, our largest trading partner. Much of our production and trade will be dictated by the requirements of EU law. The transition arrangements will probably require us to continue to respect much of EU law. So the new edition of my textbooks, The Substantive Law of the EU (5th ed, 2016) and European Union Law (edited with Steve Peers) (2nd ed, 2017) will continue to have something of a shelf life. Meanwhile I am wrapping up my projects on EU-8 migrant workers which I have been working on with Amy Ludlow. First, we have been looking at the use EU-8 workers make of the Employment Tribunals and second, looking at whether benefits have been the real reason why migrant workers have been coming to the UK, as the Daily Mail’s ‘Honeypot Britain’ headlines would have you believe.
Louise Merrett (e2003)
Reader in International Commercial Law
Louise, like many other lawyers in Cambridge, has been involved in a number of Brexit related committees looking at the implications for civil justice and particularly the commercial court in London. She is a member of a special advisory committee chaired by Hamblen LJ, the COMBAR advisory committee and also gave evidence to the House of
Lords Justice Select Committee. As well as continuing to contribute to two major practitioner works, Benjamin’s Sale of Goods and Chitty on Contracts, her most recent research has concentrated on various aspects of jurisdiction agreements. Louise is reporting to the Hague Convention next year on the English position in relation to optional jurisdiction agreements and is looking at a number of related areas such as the future for asymmetric agreements and enforcement at common law.
Joanna Miles (e1999)
Reader in Family Law and Policy
Jo Miles has just come back from a year of sabbatical leave, which took her to New Zealand and Australia in December, but otherwise tied her to her desk in Nevile’s Court working to finish her empirical project examining outcomes in financial remedy cases on divorce…
Her trip Down Under was prompted by a reform project recently initiated by the Law Commission for New Zealand on their relationship property law (the law that governs the division of property on the breakdown of marriages, civil unions and de facto relationships and where those relationships are ended by death). She met with members of the Commission’s project team barely 24hrs after arriving in NZ for an all-morning meeting, culminating with a lunchtime seminar delivered by her – somehow still awake and (reportedly) vaguely coherent! Then it was back up to Auckland for an intensive two-day colloquium on relationship property law with a specialist group of lawyers, practitioners and judges, with the Law Com team in attendance. The papers from the colloquium will be published shortly by Intersentia: Modern Family Finances, Palmer et al (eds).
Having gone all that way, it seemed daft not to pop over to Oz as well, so Jo made a brief trip as a Visiting Scholar at Melbourne Law School, where she gave a paper to the Family and Child Law Research Group, University of Melbourne, convened by Professor Belinda Fehlberg. That trip paved the way for Belinda’s extended return visit to Trinity this summer, as Visiting Fellow Commoner. Belinda and Jo co-convened a specialist workshop on Anglo- Australian financial remedies law in College in September, funded by the Cambridge Humanities Research Grant Scheme and Melbourne Law School’s International Collaboration Fund.
That workshop, as well as the Socio-Legal Studies Association conference in March, the International Society of Family Law conference in Amsterdam in July, and the Society of Legal Scholars conference in Dublin in September, provided a platform for papers on the empirical project, work on which has been painfully like Sisyphus’s experience pushing that boulder up a mountain…! And somewhere in the midst of all that, Jo co-hosted a day conference in college on Brexit & Family Law, the inaugural event of Cambridge Family Law.
Jo is now back in harness, freshly promoted to Reader in Family Law & Policy in the University, DOS-ing the new intake of law undergraduates, trying to remember what Criminal Law is all about so she can lecture and supervise it again for what feels like the first time in ages, whilst working amongst other things on a new project designed to provide clearer guidance on the treatment of pensions on divorce.
Summer 2017 was a glorious year for the Trinity lawyers! Many congratulations to all of our students, but in particular to the First Class performers:
LLM: Duncan Wallace, Giorgio Risso, Julian Rapp
Part II: Chris Coulter, Alexia Michaelides, David Subel, Hayley Kinseys Part IB: Joshua Fung, Wahdana Bilal, Danielle Carrington
Part IA: Elizabeth Huang, Louise Marzano, Isaac Heather
Special mention goes to Chris and Alexia, graduates from Part II this year, who both scored a hat-trick of Firsts throughout the Tripos!
Law Residential 2017
Trinity hosted its sixth annual Law Residential in July 2017, welcoming some 38 sixth-form students from around the United Kingdom to the College for a two-day taster of life as a Cambridge law student. The programme incorporates an overnight stay in Trinity and aims to introduce participants to – and demystify – how law is learned and taught in Cambridge, and to offer them the chance to probe and develop their interest in law. The Residential was again oversubscribed and the Law Fellows and the College Admissions Office made a selection based on applicants’ academic merit and commitment to university study, with additional reference to their eligibility for free school meals and to the level of qualification obtained by their parents/guardians.
Insights into studying, learning and living law at Trinity were offered in sessions with four of the Law Fellows and (in the absence of the Fellows!) with current undergraduates Sarah-Anne Giles, Olivia Anderson, Isaac Freckleton and Elizabeth Huang. A new element in the programme for 2017 was a moderated alumni discussion, at which Christopher Johnson and Priya Kotecha shared their experiences – not only of choosing a university course and studying law at Trinity but also of embarking on legal practice, in different parts of the profession. The College is terrifically grateful to our current students and alumni, whose input was absolutely essential, and highly valued by the participants. It is particularly pleasing that current students who themselves attended past Law Residentials so kindly volunteered their time to act mentor participants at this year’s event.
On the curriculum side, participants enjoyed a lecture and mock supervisions in constitutional law, considering some elements of the Supreme Court’s recent decision in R (Miller) v Secretary of State for Exiting the European Union, as well as a seminar session on damnum iniuria, the Roman law of wrongful loss and damage to property. With respect to the admissions dimension of the programme, one of Trinity’s Schools Liaison Officers, Caitlin de Jode, offered a talk on applications and personal statements, and Ben Spagnolo led a session on the Cambridge Law Test and conducted a mock admissions interview: while Sarah-Anne hadn’t been forewarned that she would have to endure a further interview process on returning from her Erasmus year in Poitiers, she naturally passed with flying colours.
A particular highlight, as in past Residentials, was the address by the Rt Hon. The Lord Walker of Gestingthorpe PC, whose relation of highlights of a wide-ranging career as advocate and judge were inspiring, and whose engagement with participants’ questions was enthusiastic and unstinting. The College is indebted to Lord Walker for his generous collaboration in our law admissions activities.
The concluding part of the Residential took participants to the David Williams Building and the Squire Law Library, where they joined the afternoon sessions of the Law Faculty Open Day, complementing their brief experience of life and study in College with a glimpse of the Faculty component in a Cambridge student’s dual existence.
ROBERT WALKER PRIZE FOR ESSAYS IN LAW 2017
A record 135 students competed for the Robert Walker Prize for Essays in Law for 2017, including 94 students from United Kingdom secondary schools and 41 from international schools. The competition aims to encourage participants to apply for a university course in law, and to recognise the achievements of gifted and aspiring students of all backgrounds. It offers them the opportunity to explore their interest in law by researching and developing an argument on a topic of current legal importance; this year, entrants submitted essays of up to 2,000 words in response to the question, ‘What use should a twenty-first century democracy make of referenda?’
The judges were deeply impressed by the breadth and fluency of entries, which developed sophisticated arguments drawing on both abstract theory and practical examples (extending well beyond the obvious instance of the United Kingdom’s referendum on membership of the European Union). The very best essays considered the possible special justifications for, and advantages of, referenda in systems where representative democracy prevails, as well as the conditions that might be necessary for them to discharge valuable functions: conditions including, for example, the proper framing of a binary question, appropriate provision in relation to campaigning and government intervention, and the need to set clear and appropriate success criteria, especially in federal and quasi-federal states.
In view of the number and quality of entries, the judges decided to award first and second prizes, in two divisions. In the United Kingdom Division, Ms Eve Loveman (Peter Symond’s College) won the first prize and Ms Mary Hassan (St Mary’s Catholic Grammar School) won the second prize. In the International Division, the first prize went to Ms Lauren Park (Pymble Ladies’ College, Australia) and the second prize to Ms Ruilin Fang (Dunman High School, Singapore).
The final placing was determined by the Rt Hon. The Lord Walker of Gestingthorpe PC, to whom the College expresses its sincere gratitude for his continuing and stalwart support of the contest named in his honour. The Law Fellows also record their appreciation to Ms Emily Gordon, a current Trinity doctoral student in law, who provided invaluable insight and assistance in the first round of marking, and to Ms Stacey Smith, the Admissions Administrator, for her indefatigable logistical aid.
The Law Fellows were delighted to invite the top ten highly commended essayists to a prize- giving ceremony in the College in July, at which the students and their family and friends were able to meet Lord Walker, the Law Fellows and current Trinity undergraduates, to take lunch in College and to join in Open Day activities in the Faculty of Law.
The Robert Walker Prize plays an increasingly important role in the College’s efforts to encourage gifted students interested in law to apply to Cambridge. In the December 2016 admissions round, the Trinity Law Fellows alone interviewed nine of last year’s competition entrants, including the winner and runner-up.
NEW RESEARCH STUDENTS
Anna grew up in Aberdeenshire, Scotland and graduated as valedictorian of the University of Aberdeen with a Starred First Class Honours Degree in Law with Accounting & Finance. She then studied the LLM at Harvard Law School, graduating in the top 10% of her class, and the BCL at Balliol College Oxford, graduating with Distinction.
Qualifying as an Attorney in New York, as a Solicitor of the Senior Courts of England and Wales and as a Solicitor and Notary Public in Scotland, Anna initially worked as an Associate in the Energy Group of CMS Cameron McKenna in Aberdeen and London. She then undertook a dual-role as Chief of Staff to the CEO and Senior Legal Counsel for a global FTSE 100 energy company, working in the UK, US, Australia and Singapore.
Anna then moved to California to study an MBA at Stanford Graduate School of Business, before returning to the UK to work for Skadden as a Senior Associate in Cross-Border Mergers & Acquisitions. Anna also serves as a Board Director and Secretary of the Harvard Law School Association of the United Kingdom.
Anna’s primary research interests are corporate governance, comparative company law, law and economics, mergers and acquisitions and employment law. Her PhD research, supervised by Dr Marc Moore and advised by Professor Simon Deakin, focuses on hedge fund activism and hostile takeovers. In addition to a doctrinal and normative legal analysis, she plans to conduct empirical and interdisciplinary research, including an econometric study of activist board representation. See her Law Faculty profile.
Growing up in Perth, on the west coast of Australia, I did my LLB and BA (History major) at the University of Western Australia. After graduating at the end of 2013, I was Associate to The Hon. Justice Gilmour in the Federal Court of Australia, based principally in Perth but travelling also to other places in Australia for hearings. I was admitted as a barrister and solicitor in Western Australia in September 2015.
Shortly after that I moved to Cambridge for the LLM, where I fell in love with Cambridge and with Legal History and stayed on to do a PhD in Legal History.
My PhD research concerns the law of tort and contract, and the interface between the two, in nineteenth and early twentieth-century England. In 1842, the Court of Exchequer in Winterbottom v Wright considered whether or not a coach driver, who had been employed to drive a mail carriage, could bring an action against the defendant coach-supplier for injuries he sustained through the breakdown of the coach. The supplier had, under contract, provided the coach to the Postmaster-General. The action was not successful, apparently because there was ‘no privity of contract between these parties’. As is now well-known, the removal of privity from negligence law was commenced by Donoghue v Stevenson in 1932. I am looking into the rise and fall of the doctrine of privity in tort in English law, in the hope of shedding new light upon the reasons for its introduction and further our understanding of its eventual demise. I also hope to attempt to map out and compare the fortunes of privity in tort in other jurisdictions influential upon or linked to English law at the time – Donoghue was a Scottish case in which United States’ case law was considered. This research will hopefully provide a better understanding of the birth of the modern law of negligence, the reasons why the law developed in this way and the underlying policy.
I am a PhD candidate entering my second year. My research concerns the conflict between privacy and freedom of expression in the context of the English tort of misuse of private information. More specifically, I am looking at ways of rationalising and improving the judicial reasoning involved in resolving that conflict, with a view to making more explicit the link between judicial
reasoning on the facts and judicial appreciation of the two rights’ philosophical underpinnings. Ultimately, any improved rationale should strengthen the justificatory basis for outcomes of that tort action, and ensure the courts are, and are seen to be, treating fundamental rights seriously.
I completed my undergraduate degrees in Law and Arts (majoring in German and Political Science) at Canterbury University in Christchurch, New Zealand, after which I entered legal practice at Russell McVeagh in Wellington. I specialised in public law and policy, advising on a wide range of matters, from international trade, to public inquiries, to Privacy Act (data protection) issues and compliance, to public law litigation. I was fortunate enough to be able to be involved in matters beyond a purely commercial context, including issues in human rights law, media law, and animal protection law. I also gained valuable insight into the functioning of government departments from the ‘inside’, during my secondment at New Zealand’s largest ministry, where I oversaw and advised on various constitutional issues. While in Wellington I also enjoyed working with the New Zealand Law Society, as Young Lawyers’ President, and on the Women in Law Committee. Engagement with the profession, and the wider business, academic and public service communities, was very important to me as a practising lawyer, and that motivated me to organise several discussion panels and events on the issues of gender equality in the public sector, equality apathy in society more broadly, and information, power and the rule of law.
Following almost three years at Russell McVeagh, my academic interests and motivation took me to Cambridge, to undertake the LLM. It was not easy leaving practice and a firm where I had had invaluable experience in such interesting and varied work. Thankfully, my
LLM year in Cambridge was academically as engaging and rewarding, and as enjoyable, as I had hoped it would be. So much so that I decided to stay on!
My general areas of interest in the law include constitutional law, human rights, media law, and legal and political philosophy (particularly rights and rights-conflicts). I hope to bring these disciplines together in a meaningful way in my doctoral research.
I studied for my first law degree at the University of Canterbury in New Zealand, where I concurrently obtained a science degree majoring in physics – a combination that, while prompting many questions over the years, has proved invaluable. Following my studies, I qualified as a barrister and solicitor and worked as a judges’ clerk in the High Court of New Zealand for two years.
There, I became more and more involved in climate change advocacy outside of work, ultimately becoming a New Zealand youth representative to the UN climate negotiations in 2013-2015.
This led to an opportunity to work on climate finance law and policy at the Inter-American Association for Environmental Defence (AIDA) based in Mexico for several months in 2015, before coming to Cambridge for my LLM specialising in international law at Emmanuel College. A quirk of the LLM exam system (namely the Whewell examination on disputed issues in international law) enabled me to come to Trinity for my PhD, for which I am very grateful. I am also supported by the Commonwealth Scholarship and the New Zealand Federation of Graduate Women Fellowship.
In my PhD I am investigating whether there is an emerging legal norm regarding the participation of indigenous peoples and ethnic minority groups in international law-making and other international regulation. To this end, I am exploring the twin pillars of self- determination and minority rights, with an eye to the customary international law of international organisations. This study was prompted by my observations of non-state actor participation in the UN climate negotiations, where international law currently does not adequately explain practices occurring on the ground. Alongside my PhD, I continue to consult for NGOs working in the international climate negotiations and other sustainable development spheres.
I am a public law lawyer from Canada interested in the history of administrative law. Prior to arriving at Cambridge I received undergraduate degrees from York and Queen’s (Canada) and a Masters from Harvard. I completed my articles of clerkship under the Honourable David W. Stratas and practised briefly in Toronto.
I am interested in the historical and conceptual foundations of judicial review in England and my PhD project will attempt to better understand these foundations by tracing the development of the prerogative writs throughout the emergence of the modern state and within wider constitutional developments. The history of administrative law is fascinating because the writs began in the Middle Ages when there was no separation of powers within central government. From its origins until the end of the seventeenth century judicial review focused on relations between local and central government. By the middle of the nineteenth century, the focus had shifted to the relationship between the branches of government, and ensuring that public bodies act within the powers given to them by law. I hope that obtaining a better understanding this transformation will assist in better understanding of what underlies judicial review today.
FROM OUR FOREIGN CORRESPONDENTS
From Sarah-Anne Giles (2014), Our Correspondent in Poitiers, France
I spent this last year at the Université de Poitiers in France as part of the Erasmus exchange programme that the Law Faculty offers. Having been absolutely terrified at the beginning, it is an experience that I am extremely glad to have taken full advantage of.
In typical French fashion, my arrival in Poitiers was marked by a barrage of paperwork! Immediately having to fill out all sorts of forms and answer questions in French was a little overwhelming and, for the first day, I was convinced I had made a huge mistake in deciding to study abroad. But, as classes started and I began to get into the swing of things, everything changed. What had started as a frightening leap into the unknown became an opportunity to learn in a manner very different to what I was used to; to discover a new city; and to meet people from all over the world.
Lectures were a big difference: they would often start at eight in the morning and each one would be three hours in duration. Concentrating in a different language for a prolonged period of time proved a challenge, but it was one that I soon became very grateful for as it improved my listening skills so incredibly quickly. Seminars, too, took a very different approach. Having been used to reading case-after-case at Cambridge as preparation, I expected much the same in France. However, I soon learned that there is a statute for almost everything, and cases were not of as much importance. Picking up my first one, I quickly realised why: the entire case barely consisted of a page- no reasoning, purely a summary of the facts, the claims of the parties, and a few sentences making up the judgment at the end.
The tendency of the professors to favour the academic side only contributed to this approach. Rather than spending a majority of my time concentrating on the substantive law, I was reading articles of revered philosophers and lawyers such as Montesquieu and Rousseau. This approach was something that I embraced because it actually gave me a greater insight into French political history and ended up with me thoroughly enjoying writing one of my final essays on the history of the role of the prime minister in the French legal system.
Outside of the academics, Poitiers itself was a wonderful city to stay in. A city of students, it always had events going on. From the transformation of the main square into a winter wonderland complete with an ice rink at Christmas, to the film festival, to the Colour Run in the enormous Parc Blossac- a park that even housed its own animal farm- it was always full of activity. The university also attracted a great many students from abroad on exchange. I was lucky enough, not only to meet lovely French students, but also people from all over the globe: Austria, Canada, Colombia, Germany, Italy, Iran, India, and the US to name just a few. This was one of my favourite things about being in Poitiers as I got to learn so much about so many different cultures.
What can be drawn from this is that my experience in Poitiers was wholly positive and eye- opening. I am extremely grateful to the Law Faculty for having given me the opportunity to study abroad: I improved my language, made friends from all over the world, and learnt a lot about a different country’s legal system. I am sure I will be returning to Poitiers soon as it is a place that now holds many good memories for me.
From Olivia Anderson (2015), Our Correspondent in Poitiers, France
Sitting down to reflect on the past two weeks here, I can’t resist a wry smile. Overall, it has been a fortnight full of discoveries, surprises (mostly pleasant) and more mistakes than I care to mention. It is true that moving to Poitiers was far from the seamless transition that I had, perhaps naively, envisaged.
My arrival here was marked by a prompt initiation into the maddening world of French bureaucracy; a blur of never-ending queues, countless signatures and dashing from one comically abrupt receptionist to the other. Dare I say it, however, the relentless admin is finally beginning to subside, allowing me to divert my efforts elsewhere: notably, getting from A to B.
The hop, skip and jump from Trinity to the Law Faculty is no more. And instead? Many, many, many a bus saga. Whether it’s realising, the hard way, that buses won’t stop unless you frantically flag them down, or that the timetable is really more like a rough guideline, or indeed, learning to be grateful for a bus showing up at all given that an impromptu strike (now seemingly a weekly occurrence) could leave me with a 40-minute walk and only 20 minutes in which to do it if I want to get to my 8am (!) lecture on time. Then again, were it not for all these mishaps, blisters and accidental detours – which almost always involve me going up rather than down the city’s infinite hills – I would not have discovered nearly as many of the historical sites and spectacular scenes that Poitiers has to offer.
As each day passes, I no longer feel the horror and embarrassment that I initially felt at every wrong turn or grammatical error. The feeling of foreigner is gradually being chipped away and I’m becoming increasingly in tune with the Poitevin pace of life. Both locals and students are characteristically open and relaxed; never in a hurry, they will happily sip on their coffees and chat away for hours on end in the idyllic Place Notre Dame. The city is intimate without being suffocating. I am constantly meeting new people, French and international, and it’s not uncommon that I find myself involved in a fully-flowing conversation where three or more languages are being spoken at once.
Lectures are now in full swing. This semester I will be studying a broad range of subjects giving me the chance to engage in new legal matter as well as approach the more familiar subjects with a fresh pair of eyes.
It would be easy to say that I could have done without all the initial hiccups but, on reflection, they have given me new friends, lots of laughter and a slightly improved sense of direction. I am truly excited for the many more mistakes and memories to be made this year.
From Tobias Kuehne (2015), Our Correspondent in Yale Law School, USA
The Henry Arthur Hollond Travelling Studentship in Law generously aided me in defraying costs of living. Studying for a
J.D. at Yale Law School and a Ph.D. in German Studies at Yale, I hope to craft a unique research agenda that will let me pursue an academic career in law in which I combine practical knowledge with theoretical concerns.
At Yale Law School, the first year (the “1L” year) includes four mandatory courses: Torts, Contract Law, Civil Procedure, and Constitutional Law. Students are divided up into subgroups of roughly 100. We approach those subjects primarily through cases and appended casebook comments before directly reverting to codes, statutes, and restatements. At Yale Law School, we are taught in the Socratic method: people are called on in a random order to produce the facts, holding, and reasoning of a given case. The professor then continues to ask more critical and challenging questions. This teaching method is designed help students develop and express their thoughts in an unscripted manner in front of a large audience. An upshot of this method is that students ensure that they always come to class prepared. While there is a consistent incentive to stay on top of one’s work, the pressure eases at the end of the course: exams are pass/fail, and all students tend to pass their classes. Outside of class, I have become involved in the Asylum Seeker Assistance Project (ASAP), which helps detained asylum seekers in the U.S. obtain and prepare for their court hearings. I also joined the Yale Journal of Law and Humanities as an Executive Editor.
A special feature of Yale Law School is the Small Group: each class year of J.D. students (consisting of roughly 210 students) is divided into groups of about 16 people each. Those Small Groups move from course to course together, where they intermix with various other Small Groups. One of the four courses, however (in my case, Contracts), is taught in a seminar setting containing only those 16 students. The professor teaching that course is assigned as a special mentor and source of advice for those students.
The Small Group setting is just one of several ways in which Yale Law School promotes a sense of mutual support and collegiality, especially when it comes to pursuing a career in academia. Since receiving the Hollond Travelling Studentship in Law, I have made significant progress in my PhD work, which I plan to integrate into my legal studies. One of my interests centres around the curious status of legal tests in the American adjudication process. On the one hand, legal tests aim to provide an efficient way of applying a principle and clear-cut rules to a specific set of facts. In other words, legal tests purport to be deductive in character. However, in the common law tradition of precedent and judges’ law-making power, those tests emerge and morph over a line of cases that often lead to specifications, emendations, or significant exceptions. Put differently, those deductive adjudicatory tools are embedded in a larger inductive practice that is much more organic than the deductive rigor that those tests seek to project.
I laid the groundwork for this agenda in my PhD work on the German philosopher Edmund Husserl, who developed the theory of the ‘lifeworld’ in the 1930s by, as I argue, drawing on ideas by David Hume and Aristotle, while rejecting the deductivist scientism of the philosophy of his time. In both everyday life and in more specialized endeavours, Husserl argued, a formalized method following more or less established rules of inference always ties back to an unquestioned set of assumptions and principles that emerge from a primordially inductive practice. I have produced a rough draft of about 90 pages on the philosophical argument, and I plan to integrate it more intimately with my legal studies going forward. I hope to achieve this connection by focusing on those rare moments that prevent an inductive practice from ossifying into a rote deductivist formalism: cases of exception.
When fact patterns do not fit the bill of established legal doctrine, an existing legal concept may be repurposed, amended, or even invented. (Take, for example, the emergence of promissory estoppel as an exception to the consideration requirement in contract law; the res ipsa loquitur doctrine as an exception to the plaintiff’s burden of producing evidence to prove negligence in tort law; or the doctrine of Presidential emergency powers in Constitutional Law.)
The intriguing theoretical question is when and how to recognize that an exceptional moment that is no longer under the purview of existing legal tests is occurring and calls for a more discretionary application of the law. To supplement Husserl’s account of induction with a more robust understanding of how an inductive practice deals with the unknown and exceptional, I have worked on the philosophies of Agamben and Nietzsche. An article in which I argue that Nietzsche’s philosophy responds to, grapples with, and develops an urgent sense of danger is forthcoming in the Journal of Nietzsche Studies. I hope to bring my work to bear on the common law practice of developing and applying legal tests, balancing a need for efficiency with responsiveness to contingency and the unforeseen.
From Chris Coulter (2014), Our Correspondent in Harvard Law School, USA
Having graduated from Trinity in June 2017, I took up a place on the Harvard LLM programme as a Frank Knox Fellow. The Fellowship is granted to a handful of students from the UK, Canada, Australia and New Zealand and its purpose is to strengthen relationships between the United States and the Commonwealth.
Life so far at Harvard is very different from my experience of Cambridge. The most striking difference is the comparative size of the two institutions. Harvard has an intake of close to 700 new law students per year which is almost triple the number of law students per year at Cambridge. When you add in over ten faculty buildings, countless libraries (which are essential for most students given that textbooks can cost over $500!) and around 600 courses to choose from you can begin to see why the fees are so steep. It is only now that I have left Trinity, that I finally appreciate how lucky I was to have had so many facilities in such a compact area. In America, something is ‘close by’ if it is an half hour walk whereas from Trinity all the amenities are a leisurely stroll away.
The style of teaching is also different with Cambridge’s method reigning supreme. At Harvard the courses are primarily taught via ‘lectures’ which are the equivalent to Cambridge’s supervisions – if a supervision was conducted amongst 50 students. To some this might sound like an advantage as you can hide in the crowd if unprepared, but most Professors use the ‘Socratic cold calling’ teaching method which means any student can be randomly selected for quizzing at any stage.
There are a lot of opportunities to look forward to in the year ahead. Academically, I am excited to study the law of a different jurisdiction and to take specialised papers such as Computer Crime. I hope to supplement my classroom studies by attending daily talks hosted by the faculty where US Supreme Court Justices, visiting professors, politicians and policymakers will be speaking. Already we have been spoken to by Justice Elena Kagan. It is also an extremely interesting time to be living in America which in many respects is in the midst of social and political turmoil. On my first venture into Boston city centre with some fellow students, we inadvertently got caught up in a 15,000 strong march, protesting against the activities of far right movements in Charlottesville. Additionally, the law students have already been invited to a talk about when, how and why President Trump might be impeached.
Finally, I would like to thank the entire Trinity law community, particularly the Fellows, for all the help they have given me over the past three years. I know I would not be at Harvard today if it wasn’t for them.
HOLLOND FUND BENEFICIARIES
Global Brigades Panama, Tianyu Wang (2016)
At the end of June 2017, I was able to go to Panama as part of a Global Brigades Human Rights programme that gave a group of undergraduate students the opportunity to raise awareness of legal rights within local communities situated in the rural area of Darien through a variety of legal clinics and educational workshops.
On the first day, our group was introduced to the Global Brigades’ aims within the community, and the ways in which it provides assistance and guidance in order to facilitate a sustainable exit from the community in the near future. We discovered how the system of community banks was the first project to be introduced to Panama as part of their development model as it was the best way to build initial trust of the local community in the work of the Global Brigades. These community banks promote financial inclusion of rural residents who would otherwise be unable to access banking facilities since they are concentrated in the capital, a journey many cannot afford.
The following day we were introduced to our ‘family case’- our group would work together with the Panamanian lawyers to address our client’s desire to divorce from a partner she has already been separated from for two years. Our group also helped in legal clinics, communicating through a translator with individuals from the local community who would have otherwise found it difficult and expensive to find legal advice. Issues we encountered ranged from organising regular visitation and child support payments to marriage, and the cases gave us a fascinating insight into the impediments to accessing to legal services the community members faced. A particularly memorable case was that of a woman who had married her husband at the age of 13 and separated two years after, and her request for a divorce 30 years after the separation. It epitomised how the majority of Panamanian individuals do not have the luxury of ease of access to legal services that many developed nations now take for granted. During the programme we also engaged with the younger members of the community, visiting the local school and conducting an Anti-Bullying Charla (informative session).
Throughout the duration of the trip, I felt incredibly welcome within the community of Darien and the aspect of the experience that most surprised me was the negligible effect the language barrier seemed to have on our interactions with both the individuals who attended the legal clinics and the local children. Their willingness to accept us, a group of total strangers, into their community and their generosity in giving us an insight into their daily lives by voicing their various requests for legal assistance made the programme a success.
Mini-pupillage experience, Danielle Carrington (2015)
I would like to thank the Hollond Fund for their most generous support in enabling me to undertake a criminal law mini-pupillage at Red Lion Chambers in summer 2016. During September, I spent six days at Snaresbrook Crown Court shadowing a defence barrister in a criminal jury trial. The allegation was a serious firearms offence.
The case brought to life a number of issues I have studied in criminal law, for example, duress of circumstances and strict liability. I very much enjoyed considering evidential points which would corroborate the defendant’s account both as to duress of circumstances and also as to why, if this defence was rejected by the jury, the defendant should still only be guilty of the less serious of the two alternative counts.
It was extremely interesting to see the examination-in-chief and cross-examination of a range of witnesses. These included civilian witnesses, both those who were an integral part of the incident and those who were merely onlookers, as well as professional witnesses, such as police officers. In addition to this, expert witnesses were called in relation to DNA and fingerprint evidence.
It was particularly enlightening for me to observe legal argument relating to the admissibility of evidence which had been obtained in breach of PACE. A spontaneous statement made by the defendant was neither recorded in a police notebook nor was the defendant given the opportunity to examine and sign the supposed statement. The officer subsequently included the statement in his report a number of hours later. The defendant contested the precise wording of what had been said, which, in this context, would give the statement a completely different meaning. This has given me insight into the importance of accuracy and diligence when gathering evidence and the implications that inaccuracy may cause when the case comes to trial. I look forward to studying Criminal Procedure and Evidence this year; I hope that it will complement my studies in criminal law to give me a more rounded impression of the criminal justice system.
In addition to the way in which this experience has enlivened my academic studies, the mini- pupillage also gave me a realistic insight into life at the Criminal Bar, both the challenging and rewarding aspects of it. During the week, I was able to interact with members of the Metropolitan Police, members of the defendant’s family and the defendant himself in the cell area. It was really important for me to see the practicalities behind the trial and the importance of keeping everyone informed, particularly those for whom it may be a difficult time.
Overall, this experience has been one which has benefited me professionally, academically and personally and I am most grateful to the Hollond fund for making it possible.
THE MENTORING SCHEME NEEDS YOU! – Rachel Avery (1998)
2017 marks the tenth year of the Trinity Law Association Mentoring Scheme and while we do not like to sound too self-congratulatory, of all the alumni associations at Trinity we are leading the way in mentoring. Since 2007 the scheme has paired hundreds of students and former students with experienced lawyers working in a huge range of different practice areas with the intention that the wiser (sometimes!) and more experienced mentors will guide their mentees through the early stages of their legal careers. We are extremely fortunate that our alumni can be found in almost every area of the legal profession that one could think of and that in turn provides us with a large and varied database of mentors who are keen to pass on their experience of working in the law.
The Mentoring Scheme is open both to individuals who have read law at Trinity and those who have pursued a legal career later and it continues to be incredibly popular amongst both undergraduates and postgraduates alike. While we have a large number of very committed mentors who we are extremely grateful to for giving up their time and passing on their experience to current and former students year after year, the popularity of the scheme means that we need more mentors to add to our database.
What does being a mentor involve? Mentors volunteer to take a personal interest in the progress of a mentee. They are not intended to act as tutors, welfare officers or offer jobs but simply agree to be consulted when mentees need advice.
Once initial contact has been made by the mentee, it is up to the mentor and the mentee to agree the nature of the arrangement. All that we ask is that a mentor is prepared to have a conversation of up to half an hour with the mentee; where it goes from there is up to the mentor and the mentee. Mentors and mentees are ‘paired’ at the start of each academic year with factors such as areas of legal specialism and preferred career path taken into account when ‘pairing’ individuals. This means that even if an individual is listed as a mentor on the mentoring scheme database they may not be allocated a mentee each year or indeed may not be allocated a mentee for a number of years.
In this tenth year of the scheme we are looking for mentors specialising in all areas of law. In addition to those working in either branch of the legal profession we would be delighted to hear from those who have taken a less obvious and less travelled path following completion of their legal training. If you would be willing to act as a mentor or simply wish to know more about what this involves please contact Rachel Avery (co-ordinator of the
Mentoring Scheme) who would be delighted to hear from you. Contact: [email protected]
PAST TLA EVENTS
TLA Dinner, 11 March 2017
Over 140 TLA Members – alumni, current students, present and past Fellows – assembled in College for the Association’s biennial gathering on 11 March 2017.
Catherine Barnard, Professor of European Union Law and Employment Law and Senior Tutor at Trinity, treated the packed Winstanley Lecture Theatre audience to an afternoon talk entitled, ‘They’re changing the Guard at the Palace of Westminster: Brexit and the Law’. Leavened by a selection of political cartoons and newspaper headlines, Catherine’s lecture eloquently brought home the scope and scale of the task facing the United Kingdom Government in preparing to leave the European Union, and generated a lively set of questions and comments.
A number of connected ideas were raised in the keynote after-dinner address delivered by the Rt Hon. The Lord Lester of Herne Hill QC. This country’s most distinguished human rights lawyer touched on themes from his recent book,
Five Ideas to Fight For: How Our Freedom Is Under Threat and Why It Matters. Lord Lester shared his insight and reflections on the evolution of human rights law and discourse in the United Kingdom and on its possible futures, in a legal system outside the European Union but (probably) still closely engaged in European human rights jurisprudence. Lord Lester’s inspiring remarks and, in particular, his challenge to each of us, as present and future servants of the rule of law and of our communities, were very warmly received. The College reiterates the profound thanks, expressed at Dinner by Hardeep Nahal, for Lord Lester’s so generously agreeing to speak.
Earlier in the evening, over pre-dinner drinks in the Old Combination Room, Jo Miles explained the service of ginger beer as the principal non-alcoholic beverage at the reception, calling to mind both one of the most famous cases in the common law world and also its two feline namesakes, who accompanied (or terrorised) students in Tony Weir’s tort supervisions in Nevile’s Court. Jo conveyed the College’s pleasure to announce, in the 50th anniversary year of the first edition of Weir’s Casebook on Tort, the launch of the Donoghue and Stevenson Law Fund, with the object of supporting education, learning and teaching in law at Trinity.
As the Fund’s focus is to support and ameliorate the experience of learning and living the law at Trinity – from outreach and admissions activities, through a course of study in the College, and on into professional formation or postgraduate study beyond Cambridge – no occasion could have been more apposite for its launch than the TLA Dinner, at which such a broad cross-section of the Trinity law community came together to learn a little, share a few reminiscences and reinforce our common collegiality.
In a Hall decorated with distinctively Donoghue-and- Stevenson-labelled ginger beer bottles, the meal itself was, as ever, a wonderful occasion for alumni to reconnect with each other, their teachers and the College, and to meet current undergraduate and postgraduate students. TLA Members were, moreover, surprised and delighted to discover that artfully
piped chocolate snails had infiltrated the pudding course. The Law Fellows and the TLA express their gratitude to the dedicated staff of the Alumni Relations and Development Office – and the pastry chef who fashioned the snails! – for their considerable efforts in organising this year’s gathering.
Gender Diversity in the Legal Professions, 10 November 2016
Our autumn 2016 event, held at the offices of Shepherd & Wedderburn, was centred around a lively panel discussion, chaired by (Mrs Justice) Sue Carr (1983) on Gender Diversity in the Legal Professions. The alumnae panellists – Angela Rafferty QC, Kate Gallafent QC, Rita Nethercot, Sara Luder and Sushma Ananda – drawn from differing branches of the profession and levels of seniority, reflected on what has and has not been achieved since they were at Trinity, and discussed some of the latest initiatives and issues around diversity in the legal world. The panel and student/alumni audience together explored such questions as: Why has only one woman reached our Supreme Court, and does it matter? How are and how should firms and chambers be dealing with the challenge of gender targets (including the gender pay gap)? How can we achieve the right work/life balance for working parents and carers (of whatever gender and relationship status), and what are firms and chambers doing to facilitate this?
We took the opportunity during the following drinks reception to celebrate and promote our highly successful Mentoring Scheme – open now both to student and alumni mentees – and to thank some of our most prolific mentors.
NEW ALUMNI MEMBERS
This year’s graduating students and so newest alumni are…
Chris Coulter – currently studying for the LLM at Harvard Law School, USA.
Hayley Kinsey – currently working as Group Compliance Manager at SDL Ltd.
Giorgio Risso (LLM) – currently working as an Associate at Cleary Gottlieb Steen and Hamilton LLP (Milan office), where he practises in the area of international arbitration and litigation.
Julian Rapp (LLM) – has returned to Germany, and is working for a Supreme Court Lawyer (at the Federal Supreme Court in Germany) and lecturing on contract and property law at Albert-Ludwigs University, Freiburg.
Ryan Turner (LLM & Dip. in Legal Studies) – has commenced pupillage at Maitland Chambers, London. See also Ryan’s short article on Hohfeld elsewhere in this Newsletter, briefly traversing some themes from his Diploma thesis of last year.
Mikaela Belcher – currently studying the LPC at BPP as a future trainee solicitor at Reed Smith.
David Subel – commencing a training contract at Slaughter and May in February 2018.
Alexia Michaelides – currently working in the Investment Banking Division at Goldman Sachs, London.
Rebecca Wylie – in the middle of her LPC at BPP, and starts her Training Contract with Allen & Overy at the end of February.
and Amy George, Etta Bouzoucos, Juliana Stivanicevic, Laura Hildt.
What are the consequences of lifting the public sector pay cap? Amy Ludlow (2005)
Listen to Amy Ludlow in The Briefing on Radio 4 on 14 September 2017 discussing the public sector pay cap, talking particularly about the prison sector and wider issues about employment conditions for prison officers – pay level aside – that are contributing to difficulties in that area.
Child Protection in Migration, Rositsa Atanasova (2011)
Project Manager for Unaccompanied and Migrant Children at Lumos. All views expressed in this article are my own.
I first started working with refugees and migrants in the field almost four years ago when my native Bulgaria experienced an unprecedented influx of people fleeing violence. At the time the existing infrastructure proved largely insufficient and I joined ‘Doctors Without Borders’ (Médecins Sans Frontières) in running a project to address medical and hygiene needs at the very border
with Turkey. The organisation was reluctant to run humanitarian interventions within the EU, out of experience and principle, but objective need prevailed. We were able to improve significantly the living conditions in the largest refugee camp in the country for the six-month duration of the project.
Organisations that are skilled in emergency responses have been indispensable in responding to the actual needs on the ground quickly and efficiently. Their experience and expertise, however, have generally been shaped by contexts of operation, which tend to be relatively free from governmental interference. Naturally, such actors have found it challenging to negotiate the legal and political landscapes of Member States, where most areas of activity and service-provision are the prerogative of the state. Sporadic funding cycles also make it difficult to hang about long enough to address the entrenched problems. With time, it has become clear that sustainable solutions have to come through state structures.
In a way, the general response to the so-called ‘migration crisis’ has been a string of short- lived humanitarian interventions with little effort to address the systemic challenges. In Bulgaria, for instance, funding goes more readily towards infrastructural improvements, rather than the creation and integration of services. Right after the country started experiencing higher numbers of people seeking international protection, the established integration programme ceased to function. Officials often point out that it is meaningless to create services for asylum-seekers, because they want to move onto wealthier parts of Western Europe and Bulgaria is just an unfortunate stop on the way. Such logic, however, cuts both ways. People, unsurprisingly, don’t want to stay, because there are no adequate services or protection of their rights.
In April of this year, I joined Lumos, the NGO founded by J. K. Rowling to end the institutionalisation of children globally, as Project Manager for Unaccompanied Migrant and Refugee Children. The initiative seeks to support state institutions in tackling some of the systemic issues that hinder children’s access to rights, care and protection. After extensive consultations with different actors in the field, we have identified key areas where new approaches need to be developed. Not just in Bulgaria, but across the EU, the best interest assessment of unaccompanied migrant and refugee children is rarely carried out in a consistent manner, which incorporates long-term solutions based on individual well-being, rather than administrative efficiency. The timely appointment of guardians as soon as a child is identified as unaccompanied further impacts access to procedural safeguards and guarantees. Lastly, there is a general lack of specialised accommodation for unaccompanied refugee and migrant children, which does not recreate an institutional environment.
Guardianship, in particular, illustrates well the challenges that an NGO faces when trying to collaborate with state structures in the provision of a service within the administrative context of Bulgaria. The role of a guardian varies under EU law and across Member States from a mere legal representative to someone who watches over the general well-being of a child by taking binding decisions in his or her best interest. Social workers used to fulfil the function in Bulgaria until a legal amendment was deemed necessary due to the inherent conflict of interest under the previous arrangement. Under the current law, guardians need to be members of the municipal administration, who take on additional duties on top of their primary responsibility, because guardianship is considered an honorary function and is, therefore, not included in the official register of professional qualifications. Paradoxically and as practice has shown, a logistician or a postman can be appointed to serve as a guardian to a large number of unaccompanied children under such a restrictive legal definition, but not a professional guardian employed by an NGO.
As a result of similar tensions, individual Member States and EU institutions are coming to terms with the idea that migration and child protection cannot be treated as completely disconnected fields regarding unaccompanied migrant and refugee children. There have been various ‘soft law’ initiatives at the EU level, which seek to ensure that all children receive the protection they need and are treated first and foremost as children, regardless of their immigration status. The most recent of these measures is a communication from the Commission of April 2017 on ‘Protecting all children in migration’, which outlines priority actions regarding identification, adequate reception, swift appointment of guardians, as well as the implementation of durable solutions and integration measures. While it is not desirable that a parallel child protection system develops for unaccompanied minors, the specifics of their vulnerability and legal status need to be factored in existing services and protection measures to ensure effective access to care and rights.
Have we forgotten about Hohfeld? Ryan Turner (2015)
The matters dealt with in this short article are explored in much greater detail in a manuscript on rights and powers in commercial law that I’ve been working on over the past year at Trinity under the supervision of Trinity Fellow, Professor Sarah Worthington QC.
The meaning of terms, principles, and concepts is assumed when we speak to one another. But, the meaning of fundamental legal relations – of rights, powers, privileges, immunities, and their respective jural correlatives – is surprisingly poorly understood and the
importance of the differences between these legal relations is commonly overlooked. So, for example, we speak of ‘termination rights’ in contracts rather than ‘termination powers’ and ‘rights’ of free speech, even though there is no correlative duty to that right, rather than ‘privileges’ of free speech.
Wesley Newcomb Hohfeld propounded an influential taxonomy of legal relations more than a century ago in his ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’. This taxonomy has been critiqued, challenged, and partly amended, but has held firm in the common law world. Indeed, it occasionally crops up expressly in judicial reasoning (see, eg,  EWHC 503 (QB) at  per Plender J). Yet, depending on which electives are taken on the Tripos, students may pass on from Cambridge without encountering Hohfeld or understanding the fundamental legal relations that are assumed, but not interrogated, during their degrees. Indeed, in the discussion that follows, it is clear that courts have forgotten Hohfeld and stripped terms such as ‘rights’ of much of their meaning.
Your first thought may be that this short article will be somewhat niche; more interesting for the legal theorist or the linguist than the practitioner or academic. But an appreciation of fundamental legal concepts has a practical relevance in all areas of the law. Without a shared understanding of legal relations, conceptual and legal uncertainty is allowed to permeate into legal reasoning. If you bear with me, I’ll (succinctly) explain why, using contractual powers as an example (although there are quite a number that could be drawn on).
In recent years, courts have frequently been concerned with the limitations that are implied to legal powers in contracts. The limitations that are implied to powers must be fashioned in the context of the particular contract, but general conclusions may be drawn that extend across common forms of legal powers in different contracts. The jurisprudence in this area draws a distinction between two types of powers. On the one hand are discretionary powers such as a power to amend the terms of the contract or to determine how a duty is discharged. These powers are required, by an implied term, to be exercised in good faith, for a proper purpose and rationally (taking in either the second limb of rationality or, in some circumstances, both limbs). On the other hand are non-discretionary powers such as a power to terminate a contract and a power to give or withhold consent. These powers may be limited, but the scope of the limitation on these powers has not been settled.
Since the judgment of the Court of Appeal in Mid Essex Hospital Services NHS Trust v Compass Group UK and Ireland Ltd  EWCA Civ 200, courts have described non-discretionary powers as ‘absolute contractual right[s]’ and, on a number of occasions, opined that such ‘absolute contractual rights’ are not limited (at least, not limited by the terms sought by counsel): see, eg,  2 BCLC 486,  1 BCLC 719 and  EWHC 3342 (Ch). However,
by mischaracterising non-discretionary powers as rights, the court is able too-easily to reject the implication of a limitation on such powers and to avoid identifying a principled reason why non-discretionary powers may not be limited.
The importance of properly characterising rights and powers is a consequence of the fundamental difference between the two legal relations and the legal consequences that follow from that difference. The difference is clear to anyone well-versed in Hohfeld’s taxonomy. If A has a right and B has a present duty correlative to the right, there is no need for, or reason why, that right should be limited. If A has a power and B therefore has a liability to have a duty created, the risk of abuse of that power justifies the implication of a limitation on the power because the power is, by definition, duty- or right-creating. The content of the limitation on the power differs, however, depending on whether the power is non- discretionary or discretionary (a matter that I don’t intend to go into here). In neither case, however, is that power an ‘absolute contractual right’ (as the Court of Appeal has suggested).
The point of this short article has been to encourage recourse to Hohfeld. This is an uphill battle in the face of a broader usage of the term ‘rights’ that has no discernible content, but it is an important one. As Oliver Wendell Holmes, Jnr. Remarked in ‘The Path of the Law’:
‘If a man goes into law it pays to be a master of it, and to be a master of it means to look straight through all the dramatic incidents and to discern the true basis for prophecy. Therefore, it is well to have an accurate notion of what you mean by law, by a right, by a
duty, by malice, intent, and negligence, by ownership, by possession, and so forth. I have in my mind cases in which the highest courts seem to me to have floundered because they had no clear ideas on some of these themes.’ (Oliver Wendell Holmes, Jnr., ‘The Path of the Law’ (1897) 10 Harvard Law Review 457, 475).
Trust in police? A China/India Comparison, George Lee (1997), PhD Candidate, Development Studies
I was born in a converted pig shed in a Hong Kong shanty town and worked in a toy factory from the age of five. Unable to speak any English, I emigrated to the UK aged ten where I lived and worked in my family’s Take Away shop. I attended a local comprehensive on a council estate in Portsmouth. I was the first British Chinese to join the Ministry of Defence and the Metropolitan Police. I attended Trinity as
an undergraduate on a police scholarship reading Oriental Studies and SPS. After the police I enjoyed a successful corporate career (eg Senior Partner at Mercer Oliver Wyman Consulting; Senior Vice President at T-Mobile International; MD at Logica; and Senior Partner at Wipro Technologies) working in various parts of the globe and stood as a Parliamentary Candidate at the invitation of the Conservative Party in the 2010 general election. I undertook this PhD more by accident than by design. I met Professor Nolan, Head of Development Studies, in 2015 at a roundtable luncheon hosted by a City law firm where a Chinese delegation was presenting the concept of ‘Socialist Rule of Law’. I made two points: firstly, China – under the current system – cannot have a ‘rule of law’ but a ‘rule by law’; and secondly, all the legislative initiatives cannot guarantee that the law would be complied with at the moments of truth without addressing the shortcomings of the Chinese Police (PSB – Public Security Bureau). I was approached by Professor Nolan after the lunch and a few months later I was back at Trinity writing this PhD.
Development study is about how to improve the lives of the masses in the developing world. The police, being a frontline government agency have a great deal of power and responsibilities to create a safe and stable environment for economic and societal modernisation. My overall thesis question is ‘What are the barriers to building a trusted
police service in China and India’. I decided to conduct a comparative study between China and India because they share similarities (eg between them, they have the two largest populations in the world; long cultural histories; and started on the economic reform road roughly about the same time), as well as, differences (eg China is said to be the largest authoritarian regime in the world and India the largest democracy). Moreover, due to their size and growing importance on the world stage any internal societal shifts will not only impact their own population but have potential consequences for the wider world.
The main thrust of my research methodology is to take an ‘inside-out’ and ‘horse’s’ mouth’ approach by surveying and interviewing police officers. This short paper, however, briefly highlights a small part of my findings on public trust of police from an ‘outside-in’ perspective.
There is very little research into the Chinese police generally and none on comparing the Indian and Chinese police (PSB). The limited data that are available on public trust of police in these countries, for example the Asia and South Asia Barometer Survey (s), indicate that the level of trust in the PSB averages around 75% covering the periods 2002-2011. This compares favourably to the Indian score of 42% in the latest available data collected in 2005. My survey asked Chinese and Indian samples when they would involve the police as a potential victim, a witness or merely being a good citizen. This, I believe, would give a better handle on the real level of trust of the police than survey questions that just ask ‘Do you trust the police’? Conducting public surveys on the state security apparatus in China is extremely difficult. Consequently, in this part of my research, I decided to use Chinese students studying in Cambridge2. There is an advantage in this approach because the vast majority of these students are from elite families. Therefore, it can be argued that they will become China’s ruling elite which means that their opinions potentially hold more weight than the average Chinese citizen because these students will be in a better position to change China going forward. It can also be said that this argument may also apply to a lesser degree to the Indian student sample.
I asked the samples to select whether they would (1) definitely involve the police; (2) may involve the police and (3) definitely not involve the police against a range of scenarios (a/ You’re a victim of crime eg assault with injury, robbery, burglary; b/ You’re a victim of a minor assault without injury; c/ You witnessed a crime eg assault with injury, robbery, burglary; d/ Rowdy, noisy youths swearing and shouting in the streets late at night outside your house; e/ A street trader tried to cheat you by charging you more than originally agreed and refuses to give you your change or your money back; f/ Your next door neighbour threatens to hit you or damages your property in an argument; g/ You’re involved in a car accident where the other driver refuses to give you his details; h/ You see a suspicious looking guy hanging around – you suspect that he’s up to no good; i/ You see a man smashes a car window in the street and steals a bag from the car and walks off.
I used the UK police as a benchmark by asking them to make the selections against when they are in the UK and when they are back in their home country. The result was that the Chinese sample would ‘definitely involve police’ in the UK 135 times in total verses only 98 times if they were in China. It was extremely surprising that the results indicated that more Chinese would definitely involve the police in the UK against all nine scenarios than if they were in China. This is surprising not only given the reportedly high level of trust in the public surveys mentioned above, but also because one would expect the students to be more comfortable dealing with the police back home where they can articulate their issues better in their own language and in their own culture and be more certain about their rights in the various scenarios described. Moreover, over a third of the sample stated that they had a close friend or a member of family in the PSB.
Similarly, the Indian sample said that they would involve the UK police (total score of 164) more verses the Indian police (total score of 102), though in the first scenario – where they are victims of a serious crime – they would involve the Indian police as much as the UK police. In all the other scenarios, especially dispute resolutions and good citizenship scenarios, respondents would be reluctant to involve police. However, this might not be so surprising bearing in mind that dispute resolution in India is based more on bribery and social/political connections than on merit.
Moreover, the Indian sample also showed an obvious reluctance to act as witnesses to crime and other anti-social behaviours. This reluctance seems to support Gill’s (1999: 9) assertion that, ‘Our culture and social mores have something to do with public apathy and individual indifference’. During my fieldwork in India, this was a recurring theme:
‘If I witness an accident or see a crime being committed I would not call the police let alone offer myself up as a witness’ (Documentary Film Maker).
‘If you act as a witness then you will be harassed by the police and you will not get any protection if the criminal hire goons to intimidate you’ (Son of a Senior Police Officer).
Furthermore, surprisingly, this unwillingness to act as a witness is so pervasive and distrust run so deep in Indian society that it also applies to police officers: ‘Indian police officers will never get involve as a witness. This is because the fears of harassment from fellow officers run so deep that it is an instant reaction of the self comes first’ (Additional Superintendent); and ‘Unfortunately, the general public view is that police lie and you cannot trust what a policeman is saying, this is also the case between police officers too so if they act as a witness your fellow police officers will think that you are doing it for an ulterior motive’ (Superintendent). Jauregui (2013: 645) noted that ‘Even among police themselves there is widespread lack of faith in the institution and the individual actors who populate it’ (Ghosh 1981). This structure of feeling emerges strongly in cultural expressions by police themselves. One such expression is the mythical tale that many police told me about a self-styled ‘honest cop’ who one day asked a group of his colleagues to indicate if they would trust their co-workers to take care of a family member (usually a female) who was in trouble. According to the story, no one raises his hand affirming his trust in fellow police. Police would tell this story when trying to illustrate how degenerate and indifferent the institution has become.
I next sought to compare how the Indian and Chinese sample would respond to the various scenarios in their respective countries. As shown in the table below, I added up the scores4 from each scenario of both when they would ‘definitely’ involve the police and when they ‘may’ involve the police when they are back in their home countries. It would appear that on most measures the score for both samples are within the range of 2 points.
Aggregated score for ‘definitely’ and ‘may’ involve police. Total Score: China (191) and India (174)
However, there is a sizable difference (the Chinese sample scored higher) on items d/ witness to rowdy/anti-social behaviour and e/ dispute with a street trader. We can only speculate as to why there is more of a difference in attitude between the samples on involving the police in their respective countries but it raises questions regarding tolerance levels for such activities.
Overall, the Chinese sample with the total score of 191 versus the Indian sample score of 174 indicates that the Chinese sample are more willing to involve their police than their Indian counterparts generally. Moreover, the Indian sample scored lower in all items on attitude towards being a witness to various scenarios. It can be suggested, therefore, that this finding raises further questions about levels of trust in the police and reinforces the thesis that Indian citizens are potentially less likely to identify themselves as witnesses than Chinese citizens. If true, this may have consequences for police effectiveness and community safety in India. For China, in spite of the good showing on public trust of police in the traditional survey data, the obvious reluctant by respondents (who many are members of China’s ruling elite) to engage with the PSB verses the British police raises potentially interesting questions and is an area worthy of further investigation.