Category Archives: Studying law

Belmarsh and the UK constitution #2: The House of Lords’ judgment

This is the second in a series of three posts on the Belmarsh Prison case. The posts originate from some videos that I have been recording for the Cambridge Law Faculty’s new admissions website. In the videos, I aim to introduce some fundamental ideas about the nature of UK constitutional law using the decision in Belmarsh as a case study. The first post, setting out the background to the case, can be found here. In this second post, I examine the judgment of the Appellate Committee of the House of Lords.  

The Belmarsh Prison case was looked at at several levels of the court system: the Special Immigration Appeals Commission, the Court of Appeal, the Appellate Committee of the House of Lords, and the European Court of Human Rights. I want to focus on the decision of only one of those courts: the Appellate Committee of the House of Lords. (The Belmarsh case was decided in 2004, well before the judicial functions of the House of Lords were transferred to what is now the United Kingdom Supreme Court. At that time, then, the Appellate Committee of the House of Lords was the UK’s apex court – that is, its highest court – albeit that beyond the UK, further claims could, as they still can, be brought in the European Court of Human Rights.)

Article 15 of the European Convention on Human Rights

What, then, was the issue that the House of Lords had to resolve in the Belmarsh case? The Government argued that the foreign terror suspects’ right to liberty could, in effect, be suspended – and suspended lawfully – because the “get-out” clause in the European Convention on Human Rights, Article 15, applied. The key question was whether that was the case. Could the right to liberty – which is normally protected by Article 5 of the European Convention – be suspended by using Article 15, thereby avoiding any incompatibility between the Convention and the legislation – the Anti-terrorism, Crime and Security Act 2001 – providing for the detention of the suspects?

Article 15 does not allow Governments to suspend human rights just because they feel like it. Quite the reverse. Preventing people from exercising their fundamental rights is a very serious step – and Article 15 rightly sets out some very strict conditions that have to be met before that step can be taken. So, what are those conditions? First, there has to be a “war or other public emergency threatening the life of the nation”. Second, if there is, then a State – like the UK – can “derogate“ from the Convention “to the extent strictly required by the exigencies of the situation”. In other words, human rights can be suspended as long as there is a war or emergency, but only to the extent that the suspension of human rights is made strictly necessary by the nature and severity of that emergency.

Was there a “war” or “public emergency threatening the life of the nation”?

So, in Belmarsh, the House of Lords had to decide whether those two conditions were met. First, then, was there a “war” or a “public emergency threatening the life of the nation”? Of the nine judges – or Law Lords, as House of Lords judges were known – who decided the Belmarsh case, eight thought that there was. None of those eight thought there was a “war” – notwithstanding the rhetoric of the “war on terror”. But eight Law Lords were prepared to accept the Government’s argument that the 9/11 attacks amounted to evidence of a global terror threat that was sufficiently likely to affect the UK – and, if it did, sufficiently likely to be sufficiently catastrophic – as to amount to a “public emergency threatening the life of the nation”.

One of the nine Law Lords, however, did not think there was a war or a public emergency. Lord Hoffmann argued that the others had misunderstood what Article 15 of the Convention means when it refers to an emergency that threatens “the life of the nation”. He agreed that Al-Qaeda might well have been a threat to the lives of individual people. But, he went on: “Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community.”

This disagreement between Lord Hoffmann and the other eight judges reflects more than a dry, technical difference of opinion about the precise meaning of Article 15 of the Convention. Rather, Lord Hoffmann’s position was informed by his view about just how fundamental human rights are, and, therefore, about how easily they should give way to other considerations (such as a terror threat). Of course, this does not mean that the other Law Lords thought human rights were unimportant. Far from it. But they did disagree about the relative importance of individuals’ rights, on the one hand, and extent to – and circumstances in – which those rights should be capable of being sacrificed, or at least qualified, in order to secure other interests.

Was indefinite detention without trial necessary?

What about the second question, then? Was indefinite detention without charge or trial a necessary response to the “emergency” that the majority was prepared to acknowledge? The eight judges who thought there was a public emergency had to go on to decide whether the nature and seriousness of the emergency was sufficient to justify the particular step that had been taken – that is, indefinitely detaining foreign terror suspects without charge or trial. Seven of the eight judges said it was not. The Government had failed to show that such drastic steps were necessary. In particular, the Government had failed to show that lesser steps – such as surveillance, monitoring, and electronic tagging of suspects – would not have sufficed.

And, crucially, the Government had not adequately shown why the detention regime applied only to foreign terror suspects. As Lady Hale, one of the judges, pointed out, the logical inference was that some other – less drastic – way had been found of managing the threat posed by British suspects. And if it was not necessary to detain British suspects, it was hard to see why it was necessary to detain foreign – but equivalently dangerous – foreign suspects. The majority therefore concluded that the extra-judicial detention of foreign terror suspects had not been shown to be a necessary response to public emergency evidenced by the 9/11 attacks. It followed that the conditions for derogation set out in Article 15 of the Convention were not met – and that detainees’ right to liberty, under Article 5, remained in effect. And of course the provisions in the Anti-terrorism Act allowing for detention without trial were plainly inconsistent with that right.

The Human Rights Act 1998

To many people, the House of Lords’ conclusion in Belmarsh came as a real surprise. Not because the Government’s argument wasn’t weak – it clearly was. But because the court was prepared to recognise that weakness and condemn the Government’s position.Why was this surprising? Because previously, courts had almost invariably been extremely deferential to the Government on matters of national security. In other words, they had been generally unwilling to second-guess the Government when it asserted that some step or other had to be taken in order to uphold national security. And yet in the Belmarsh case, the House of Lords adopted quite a different approach.

The explanation (or at least a large part of it) for that change in attitude lies in the Human Rights Act 1998. That Act equips – indeed, requires – the courts to examine Government decisions and Acts of Parliament for compliance with human rights standards. And where the courts find that those standards have not been met, the Act entitles them to say as much. So when, in the Belmarsh case, the Government argued that the court should (in effect) mind its own business, and leave the Government to get on with protecting national security, the court had a clear and straightforward response. Things had changed. As Lord Bingham put it, the Human Rights Act “gives the courts a very specific, wholly democratic, mandate” to uphold human rights. In other words, courts will no longer accede to the argument that national security is none of their business – at least not when human rights are at stake. The Human Rights Act makes this the courts’ business.

Here, then, we see a shifting in the tectonic plates of the constitution, as power shifts from Parliament and the Government, on the one hand, to the courts, on the other. And that change in the bigger picture has profound consequences for ordinary people like the Belmarsh detainees. They found themselves, for the first time, able to challenge the balance struck by Parliament between the rights of individuals and the perceived interests of wider society. That, in turn, carves out a new role for law and for courts as a means of calling into question the choices that politicians have made, and raises some fundamental questions about the sort of constitution we have today.

In the third and final post, I will explain what the consequences of the Belmarsh judgment were, bearing in mind the fact that the UK Parliament is “sovereign”, meaning that, as a matter of domestic law, there is no limit upon the legislation it can enact. We will see that although this prevented the court from invalidating the legislation under which the detainees were held, the court was able to take steps that ultimately precipitated the repeal of that legislation. 

Belmarsh and the UK constitution #1: Setting the scene

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I have been recording some short videos for the new admissions website that we are developing at the Cambridge Law Faculty. In the videos, I discuss the Belmarsh Prison case, decided by the Appellate Committee of the House of Lords in 2004. Belmarsh is one of the most significant public law decisions of recent years, and (I think) it provides an accessible and interesting way of starting to understand how the UK’s constitution works. I will post the videos in due course. In the meantime, however, I’ll be posting the text of these mini-lectures over the next week or two. This is the first instalment (of three). 

Public law

People often assume that public law – constitutional law – is about very big picture questions. How are laws made? How does devolution work? What is the UK’s legal relationship with the European Union? Public law is about those things. But it is also about how that big picture relates to – and impacts upon, sometimes in very stark ways – real people.

Sometimes those people are marginalised and unpopular. And the question arises whether the majority in society are – and should be – free to treat such people as they wish. Or does – should – law prevent the majority from advancing their own interests at the expense of the weaker and the more vulnerable? Those are the questions that lie at the heart of the Belmarsh Prison case – more formally known as A v Secretary of State for the Home Department

Our story begins, however, thousands of miles from Belmarsh Prison in London. It begins in the north-eastern United States. As everyone knows, events in that part of the world on September 11th 2001 – and, most iconcally, at the World Trade Center in New York – changed the course of recent history. The fall of the Twin Towers precipated the decade long war in Afghanistan, and, only slightly less directly, the war in Iraq.

The events of 9/11 also gave rise to a climate of fear unparalleled in comfortable, secure Western societies in recent decades. That was certainly the case in the UK. As a key strategic ally of the United States, it was perfectly reasonable to suppose that if Al-Qaeda could strike in Washington DC and New York City, then London might be next.

The Anti-terrorism, Crime and Security Act 2001

Against that background, legislation – which became the Anti-terrorism, Crime and Security Act 2001 – was rushed at top speed through the UK Parliament in the days and weeks following 9/11. The Act was very long and complicated, covering a sweep of terrorism-related matters ranging from police powers to nuclear and aviation security. But of all the provisions contained in the Act, one set – known as Part 4 – was especially striking.

Here’s how Part 4 worked. The Home Secretary – a member of the Government – could issue a “certificate” against somebody if certain conditions were met. So, what were those conditions? First, she had to reasonably believe that the person’s presence in the UK was a risk to national security. Second, she had to reasonably suspect the person of being an international terrorist. And, third, the person concerned had to be a foreigner – in other words, not a British citizen.

If someone met those conditions, then a certificate could be issued. And then what? If it was not possible to deport the person then they could be detained instead. In other words, people who had certificates issued against them but who couldn’t be removed from the country could instead be imprisoned. And that didn’t mean imprisoned after having been convicted of a criminal offence following a fair trial before an independent court of law. It meant imprisoned, for an indefinite, open-ended period, on the say-so of a Government Minister.

The European Convention on Human Rights

Of course, people – including terror suspects, and even foreign terror suspects – have human rights. And one of the most fundamental human rights is the right to liberty. That right has been recognised in UK law for centuries, and is now enshrined in the European Convention on Human Rights.

Article 5 of the Convention says that everyone has the right to liberty, and that a person’s liberty can only be restricted in very limited circumstances – for example, when an independent court of law has found someone guilty of a criminal offence and sentenced them to a term of imprisonment. But it is very clearly a breach of the right to liberty to imprison someone indefinitely without a fair trial at the direction not of an independent judge but of a Government Minister.

So how could this happen? How could the UK make a law so clearly in breach of fundamental human rights? The Government, of course, had anticipated all of this. And it had a card up its sleeve. That card was another part of the European Convention – a sort-of “get-out clause”.

Article 15 of the Convention says that in certain very grave circumstances, it is lawful to, in effect, suspend some human rights, including the right to liberty. (But Article 15 doesn’t allow some other rights to be suspended. One right that cannot be suspended is the right not to be tortured – which includes the right not to be deported to countries where there is a real risk of torture. That is why the Government could not deport some foreign terror suspects – they came from countries known to practice torture – and therefore sought to imprison them in the UK instead.)

The Government’s case, then, was that following 9/11, the security situation was so severe that Article 15 allowed the right to liberty to be suspended. The suspects who were being held in Belmarsh Prison disagreed. And that disagreement was what the courts had to resolve in the Belmarsh Prison case. In doing so, the courts had to address some difficult and delicate questions about the extent to which individuals’ rights can be sacrificed or qualified in the pursuit of the (perceived) interests of the majority. And the courts also had to confront questions about their own role, and the extent to which the views of elected politicians expressed through an Act of Parliament – should take priority in such circumstances. Looked at in this way, the case was not only about how to strike the balance between individual liberty and (the perceived demands of) public safety, but also concerned the balance of power between Parliament and the courts.

In the second post, I’ll examine the decision of the House of Lords in the Belmarsh Prison case itself. A third post will follow, concerning the wider implications of the case—and the lessons we can learn from it about the nature of the UK’s constitution today. If you would like to read more about this case and related issues, you might like to look at chapter 1 of the textbook, Public Law, which I published in 2011 with Professor Robert Thomas. Chapter 1 can be read, free-of-charge, via this link on the Oxford University Press website.  

Guest post: Jack Williams’s study advice – A letter to my fresher self

jack picture original copy 2This guest post is by Jack Williams, who studied Law at St Catharine’s College, Cambridge, graduating with a First Class honours degree in summer 2012. In it, he offers advice – by way of a letter to himself as a new Law student – on how to study Law.

So, you’ve been studying Law for a term now and you’re feeling a little snowed under. You’ve never studied Law or anything even like it before and never felt quite this challenged by something. You’re beginning to question whether you’re ‘doing it right’, and want some suggestions how you might go about your studies to maximise your grades. So, having now completed my Law degree, if I were to write to my fresher lawyer self, this is what I’d tell myself…

First, Jack, there is certainly no golden one answer about how to study Law or go about your studies: everyone learns differently and everyone enjoys different topics. Therefore do what works for you; ask and take everyone’s advice on board – they’re trying to help and there’s no shame in asking – but always remember that you’re the one trying to learn and it’s you who’s going to be taking the exams at the end of the year. Have confidence in yourself.

Second, you’re bound to make mistakes. Jack: you’ve never studied Law before, you’ve never been to University before, and you’re here to learn. You’re not meant to know everything at the age of 19. You learn by doing – take a risk and try it out. The process of finding out how you learn best and the sometimes gruelling effort you have to put in to learn how to learn Law will be incredibly beneficial and personally fulfilling. It will all click into place; it will happen – once you’ve mastered it, everything becomes so much easier and reading the next chapter, article and case becomes quicker and easier. Keep going and believe in yourself. Don’t keep on doing things that obviously aren’t working.

Working effectively

Third, simply cramming and rushing to finish everything for a supervision or a class is rather foolish if that means that you’re skipping material and not really thinking about what you’re reading and contrasting academics’ and judges’ viewpoints with your own. You shouldn’t be treating supervisions or classes as the end goal or a test; instead you should treat supervisions as part of the journey. The end of the journey is your complete understanding (and ultimately the exam). This all means that you should be smart about what you aim to get out of your supervisions or classes – they’re there to help you. This approach will mean managing your time carefully and being methodical about what you cover and when. It is not an excuse for not doing the work. It might, though, mean that you cover some of the work after the supervision itself – check what’s on the handout and what’s going to be focused on. Doing the reading properly once (instead of cramming/rushing for the supervision and having to come back in the holidays to start from scratch when you’ve forgotten most of it) will actually save you time and aid your understanding as you’re working on the topic as a whole at one time. It will enable you to see the topic in the round. To master this approach you should be aiming to really comprehensively study the topic the first time round – this means also working from your lecture notes and reading all the extra material and further reading. This will mean you have to look at the whole reading list at the start and split it into the individual topics; warning – this might mean working from different parts of different books/chapters at one time instead of going through one resource at a time.

Fourth, don’t simply highlight your textbooks. A good approach is to type your lecture notes (which saves a lot of time, are easier to read, and are quicker to edit) and you can then add your textbook notes to them. This reduces unnecessary duplication. You should read the textbooks and reading list material alongside your lecture notes as you go (even if lectures aren’t finished) and add textbook notes to lecture notes. You will then have one very comprehensive document which is much better than a variety of different sources and notes with lots of duplication. This will save you time when you come to revise! When it comes to articles (which you absolutely must read – you won’t be able to answer essays otherwise!), you should print these all off (double sided will save paper and money and time printing!). These you should highlight. You should also dot little notes on them. Then leave space in the relevant place in your lecture/textbook document so that when you print them off you can slot the articles into the right places. Highlighting/doodling on articles instead of typing them up like you do the textbooks will save you a lot of time which will enable you to read more. The more articles you read, the quicker it becomes as many have duplications and basic case facts and ideas repeated. Also not typing up articles will mean that you still have the original – you may find you missed out crucial threads of arguments when you come back to revise! Putting a two line summary of the main argument at the top of the printed article will also help.

Cases

Fifth, Jack, before you read the cases, make sure that you’ve read the relevant textbook sections and search your reading list and Westlaw for other case commentaries (especially if your reading list didn’t include any short summaries for the cases it specifically asks you to read). This will enable you come at the case with a very clear idea about its topic and content. It might even save you from reading the whole case if the commentaries were very clear and include judges’ names and arguments. In any case, it might make reading the case much easier and you’ll have some academic opinion to think about and point you towards the right places so you know what you should be thinking about or focusing on.

Sixth, as you’re studying you should be looking to assign a case name to every statement of law you note down, and an academic’s name to every opinion or comment on the law (unless it’s your own theory – and no other academic has previously written it down!). Lecturers’ comments are not authorities. When you’re making your notes, if you ensure the case and academics’ names are all down the left-hand side of the page, when you come to revision you’ll be able to cover them up and test yourself. Aim to be making your notes in a nice format which is revision friendly from the start!

Seventh, I’ve already hinted at this to you, Jack, but you really need to be doing as much of, if not all of, the further reading– at the same time as the other reading preferably. Otherwise make a (clear and easily-findable) list of everything to do in the holidays – make this as you go along, you honestly won’t remember otherwise.

All work and no play … 

Eight, continue to go out and enjoy yourself – if you time-manage well enough, you will still have enough time to play a sport, go out a couple of evenings a week and hold a number of extra-curricular positions! In fact, you’ll end up being a lot more time-efficient and stop wasting time/procrastinating as much as you did. You’ll also enjoy and appreciate your studies a lot more – the happier you are, the easier you’ll find it to study. You might, oddly, find out that the more you do, the better your grades become…

Nine, be active with law. The more you engage with it, Jack, the more it’ll make sense. Getting active with law means a number of things: not just sitting and passively reading, but actively thinking about it (i.e. factual situations and what the ‘answer’ in court may be), mooting, going to all the additional evening lectures your university offers, and emailing supervisors and friends.

Collaborate

Ten, continue to work with your friends. Form a study group – share around further reading notes, set each other extra articles not on reading lists and then share the notes around. Meet up before your supervisions or classes 15 minutes before to run over a couple of things. Perhaps even arrange small revision groups together. Definitely have a group mailing list! Remember you’re not in competition with mates. Instead, by sharing notes, sharing thoughts and working together on past exam questions you’ll be able to test your knowledge, get other ideas, get through so much more material than you could have on your own and it will mean you’re much more active with law. It also makes studying a lot more enjoyable and will mean you save a lot of time struggling through alone. Warning though – this is not an excuse for not doing the work yourself (especially the material on your reading lists marked ‘essential’ or ‘basic’): you absolutely must be doing the ‘building block’ work yourself; group study is superb for going beyond your reading lists and for revision of all kinds though!

Eleven, it’s a great idea to be thinking about the exam throughout the whole year. At the beginning of the year, print out all of the past exam papers and examiners’ reports. After you read through each handout or reading list, look through all the exam papers and label the questions for that supervision or class. This will enable you to know what to look out for or what sorts of issues to focus on when you do the reading. It’ll also help to give you an idea of what sorts of things to take notes on. If you don’t know how to answer the question by the end of your reading, or don’t know where to look in your notes, then remember to take the exam question along to your supervision or class and ask your tutor about it.

Stay up to date

Twelve, keep up with the legal news. The best way to do this is to read blogs (such as www.applyingforlaw.org for constitutional law, and http://mcbridesguides.com for tort law) and to use Twitter to follow legal academics, bloggers, your law faculty, the courts, other law students and barristers. Retweet everything that looks useful and relevant and then go back to read when you have more time.

Thirteen, if you’re finding life tough, speak to people – your tutor, supervisors, Director of Studies, lecturers or even your law society president. Never be afraid to admit you don’t understand something or to ask for help. When it comes to academics, before you email them do make sure you’ve honestly tried hard and looked your legal question up as best you can – they won’t appreciate it otherwise!

Exams

Fourteen, in exam term, have a game plan. Aim to read through all the notes at least twice. Then make several essay plans per subject – throughout the year you should have noted key essay topics for each topic as you went through (utilising past papers, your own common sense on what the debateable areas in that topic are, what lectures focused on, what’s new or in the legal news, and what you enjoy/understand the most). Ensure your essay plans have lots of case and academic names; make sure you’ve gone beyond lecture notes by looking at the latest editions of all the law journals. After that, then make condensed hand written notes based on your full notes. Then keep on re-reading everything again and again and again and again…. However, you cannot simply be passive and just read though – after you read each page you need to test yourself in your head: cover up the case or academic names. Then, for ones you keep forgetting or getting wrong maybe make some posters and some flashcards. Also make sure, however rough or illegibly, that you have written each case name and academic name at least once so you know how to spell it and also test yourself that you’ve remembered it.

Fifteen, in your exams:

  • Always cite case names; always underline case names.
  • Put judges’ names in – even if you simply cite a case name, dicta and then put “(per Williams LJ)” (even as a student you can dream!).
  • Always put lots of academics’ names in. Academics’ names plus year of article is even better (i.e. “As Williams (2012) rightly argued…”) or just bracketed after a long sentence (e.g. “The law of equity is really difficult (Williams, 2012)”. Another thing to remember is that if you’re not just putting the academic name after a general sentence concerning a point you’re attributing to them by putting them name in brackets, then you should put words like “rightly”, or “convincingly” or “lucidly” or “correctly”. This will show that you’re engaging with them and not just regurgitating their names and ideas.
  • Write what you think will be your best answer first, your second best second, etc.Also don’t be scared about doing any Section B’s first, or any part (c)s before part (b)s etc. Doensure that you label clearly though – the examiner is unlikely to appreciate it if she has to navigate a script with lots of arrows pointing the way between different parts of your answer.
  • Make sure that it’s very clear where your answer to one question ends and where your answer to the next question beings.
  • Plan. This might only have to be for a minute if you’ve learnt your essay plans well enough and are lucky enough for one vaguely related to come up.(But remember that the examiner will want to read an answer to the question she has asked: don’t just regurgitate a prepared essay unless you’re asked exactly what your essay plan relates to – you  are very likely to have to adapt it and think on your feet, but at least you will have got the relevant material and some sort of order in mind.) Write 8 or so bullet points i.e. one for each main point plus an introduction and conclusion.
  • Remember that your introduction must be your conclusion; it must answer the entire question in one paragraph and it must contain each main point your essay will make i.e. it is basically your one minute essay plan! If you treat your introduction like an essay plan and a bit like an interview oral question which you have to answer in literally a minute or two in a nutshell you will do well and your essay will flow nicely and have structure.
  • Aim for absolute clarity – use pointers like ‘first’, ‘second’ and ‘in conclusion’ to thread your argument together; this will make reading your script easier for the examiner and also demonstrate a logical approach to the question.

As Jack notes at the beginning of this post, there is no magic bullet. Studying Law – and learning how to study Law – is not easy at first, and there are many different possible approaches. This post reflects Jack’s own views, and what worked for him. Have you found any of these techniques helpful? Do you disagree, or have other advice? If so, feel free to add a comment below. 

What Law Graduates Do #1: The Law Commission

This is the first in an occasional series of guest posts by people I have taught. The series aims to give a flavour of the range of things that Law graduates go on to do. This post is by Peter Yates, who is currently working at the Law Commission. 

I studied Law at St Catharine’s College, Cambridge, and graduated in 2010. After that, I did an LLM in Public International Law at UCL, as well as some legal work, internships and volunteering. Now, I am a research assistant in the Law Commission’s criminal law team. This post should hopefully give you an idea of what this interesting and challenging role involves, as well as some information about the Commission’s work.

The Law Commission is the law reform body for England and Wales (there are similar organisations in Scotland, Northern Ireland, Ireland, Australia and New Zealand). Although it is a statutory organisation funded by the state, it is independent of the government of the day. The Commission’s role is to review areas of law which are unfair, outdated or unnecessarily complicated and to propose new laws which are fair, modern, simple and cost-effective.

The Commission is split up into four teams, each of which deals with a different area of law – each team will have a number of reform projects on the go at any one time. The criminal law team is currently looking at the law on insanity and automatism, contempt of court and kidnapping. In addition to the four law reform teams, there is another team whose task it is to remove ancient and redundant laws from the statute book.

Once an area of law has been included in the Commission’s programme of reform (on the basis of a recommendation from judges, lawyers, government departments, the voluntary and business sectors or the general public), the Commission produces a “consultation paper”, which sets out the current law, identifies any defects and proposes some potential reforms. Consultation papers are circulated widely to interested organisations and individuals and to the media. Anyone can respond to one of the Commission’s open consultations. This process of consultation is crucial to ensure that the law reform process is fair and effective – hearing from people who are experts in that particular area of the law, or who have experienced it in practice, gives legitimacy to the Commission’s reform proposals.

After the consultation responses have been analysed the team will produce a final report, which sets out the Commission’s reform proposals. If necessary, the team – working with the Commission’s in-house Parliamentary counsel – will also produce a draft Bill. It’s then up to the Government to decide whether or not to implement the Commission’s proposals.

Working as a research assistant is fascinating. After four years of studying law and hearing (and writing) seemingly endless criticisms of it, I’m able to make a (very small) contribution to its reform. Being at the heart of the law reform process is exciting for anyone who has read about the law or who has an interest in politics. There are meetings with government officials, senior judges and eminent lawyers, as well as an opportunity to write material which ends up in Commission publications. The criminal law team has recently been looking at the offence of “scandalising the court”, which criminalises attacks on judges and the judiciary. The issue has been covered in the media and in Parliament, and the Commission released a consultation paper on the offence in August.

Research assistants are given a number of tasks, depending on the needs of the team. A typical day might involve writing research minutes on a particular area of law or procedure, dealing with correspondence coming into the team, or proof-reading documents prior to publication. I’ve been lucky enough to have an opportunity to draft a piece of work which is going to be published alongside the Commission’s consultation paper on contempt of court. Freedom of Information requests are also the responsibility of research assistants.

So, what sort of skills might a research assistant need? Clearly, a good knowledge of the area of law in question is essential. In addition, researchers must have a keen eye for detail – a missed case or statutory provision at the start of a project may cause the whole argument to unravel further down the line. The ability to explain difficult concepts clearly – both face to face and on paper – is also crucial, as is a willingness to work closely with the other members of the team. Researchers also have to be able to drop what they are doing and familiarise themselves with a new area of law at short notice.

Working as a research assistant is challenging and rewarding. It’s an opportunity to work with some extremely intelligent lawyers and to see the inner workings of the law-reform process, as well as great preparation for a career in law. I would encourage anyone who has a good law degree and an interest in law reform to apply.

The Gujra case, and the Guardian’s new “headnotes” series

The Guardian has launched a new “headnotes” series, as part of its Law blog. The series, which provides a brief and accessible guide to cases of topical interest, is likely to be of interest to prospective Law students.

The first case to be featured in the series is R (on the application of Gujra) v Crown Prosecution Service. The case involves a challenge to a decision by the Director of Public Prosecutions to take over a private prosecution – that is, criminal proceedings brought by one individual against another – in order to discontinue those proceedings.

Most prosecutions are brought by the state, in the form of the Crown Prosecution Service. But if the CPS decides not to prosecute – either because it thinks there is insufficient evidence or because it thinks the public interest does not warrant prosecution – it may be open to an individual citizen to do so. In Gujra, the DPP took over the proceedings (in which Mr Gujra alleged he had been the victim of criminal assaults) and discontinued them on the ground that there was not thought to be a realistic prospect of conviction.

This raises an important question about the extent to which the state – in the person of the DPP – should be permitted to halt private prosecutions. As Lord Mance observed in Jones v Whalley [2006] UKHL 41, “[t]he right of private prosecution operates and has been explained at the highest level as a safeguard against wrongful refusal or failure by public prosecuting authorities to institute proceedings”. It thus provides – as the Guardian piece puts it – “a safety net against failures, refusals and wrongdoing on the part of those whose job it is to bring public prosecutions”. When the Supreme Court decides the Gujra case, this will help to determine more precisely the extent of that “safety net”.

The Guardian’s law student series

The Guardian website is running a series of articles for people thinking of applying to study Law at university. One of the articles lists six books – many of which are also mentioned on this blog – that aspiring law students should read. There are others dealing with the often difficult and sensitive questions that law students (and lawyers) have to confront, and with the question whether law is boring – to which, as readers of this blog already know, the answer is of course “no”.

Applying to Cambridge? Open day now online

If you’re thinking of applying to Cambridge to study Law but missed our open day, you can now watch the various talks that were given by visiting our open day website.

And if you’re thinking of applying elsewhere to study Law, some of the talks – particularly the session on Legal Problems – may still be of interest.

Law degrees and the Supreme Court Justices

In an earlier post, I mentioned Lord Sumption’s suggestion that prospective lawyers would be better off doing a non-Law degree and then converting to Law later on. It’s interesting, then, that – according to this post on the UK Supreme Court Blog – most of the present Supreme Court Justices studied Law (or Jurisprudence) at university.

Guest post: Advice from a recent Law graduate (Part two)

This is the second of Jack Williams’s guest posts (the first one is here). In this post, Jack suggests some fiction books that aspiring Law students might ­want to read, and offers some further thoughts on what to expect of a Law degree course.

You may not have expected to find fiction amongst your suggested reading (and you certainly won’t once you start the Law degree itself!), but there are two excellent novels which you may wish to read on a rainy day (there might be many this summer by the looks of it!) or on any summer travels you may have planned. These novels obviously have the Law as their backdrop and will get you really thinking about legal issues, albeit via a more informal approach perhaps.

The first is The Trial by Franz Kafka. This is the story of a man unexpectedly arrested and then prosecuted by an inaccessible authority for a crime which is never revealed or explained to him – he simply does not know what he has done wrong, if anything, nor how to go about defending himself (Against what? one might reasonably question). This should get you thinking about all sorts of constitutional and justice-based questions: Is this just? What rights should citizens have to know the case against them? Why? What authority does the state have to do this, if any? Are there individual rights which can’t, or shouldn’t, be removed by the state? What makes a fair trial? Are the Law and morality separate things? What does it mean if the Law as written (de jure) and the Law as in practice (de facto) are different? These sorts of questions will feature heavily in Constitutional, Administrative and Jurisprudence modules in a Law degree. Interested and keen readers might like to do some further reading into what is called the Rule of Law – a good place to start might be Lon Fuller’s The Morality of Law (just chapter two would suffice) or Lord Bingham’s The Rule of Law.

The second novel is Bleak House by Charles Dickens. The backdrop for the whole story is the case of Jarndyce and Jarndyce, about fallouts regarding a will. The novel is a long one and predominantly about the developing relationships between the characters themselves, but your focus for thought should be the litigation itself. The case has consumed many, many years of preparation and trial, plus between £60,000 and £70,000 in court costs. This should get you thinking. Is justice delayed, justice denied? What are the advantages (precedent, public nature etc) and disadvantages (costs, time etc) of a court-based system? Is there another way to do justice outside the courts such as ‘consensual justice’ like mediation or arbitration? Does the high cost of cost proceedings mean that some people don’t really have access to justice? What about lawyers: what role do they play – is the scheming Tulkinghorn the norm, or a rogue I should aim not to be like? These sorts of questions will feature heavily in the Civil Procedure module during your Law degree. If you are interested in reading more about these areas, I would suggest Hazel Genn’s 2008 Hamlyn Lectures, Judging Civil Justice (chapters one to three would suffice).

Final comments

A Law degree is formed of a multitude of subjects (at Cambridge, for example, students usually study 14 separate papers). One common mistake – because it features some much in the media, films, and so on – is to think of Law as predominantly Criminal Law, but in fact this is just one module. By reading some of the books I’ve suggested in this post and in my earlier post, you will soon be able to distinguish between different areas of Law and then begin to see the plethora of various areas of Law which exist.

Another common mistake would be to think of Law as just a set of rules which, during your Law degree studies, you simply have to learn by rote. Again, by reading the above suggestions, you will soon discover that this is wrong: the Law is always complex, sometimes inconsistent, infrequently unstable and at other times completely unknown! There are always policy debates – Is ‘X’ Law satisfactory? What are its policy goals? Does it need reforming? What are the alternatives? I hope this blog, and its recommended reading, have helped to start you thinking about these sorts of questions which, in turn, I hope have academically excited and interested you. If so, studying for a Law degree will be deeply rewarding.

The author of this guest post, Jack Williams, studied Law at St Catharine’s College, Cambridge, graduating in summer 2012. For other reading suggestions, see this page

Guest post: Advice from a recent Law graduate (Part 1)

This guest post is by Jack Williams. He completed his Law degree at St Catharine’s College, Cambridge, earlier this summer. In this post, Jack makes some suggestions about what, as a prospective Law student, you should be thinking about and reading. 

Many, if not most, of you will never have studied any Law before, not have any connections within the Law, nor have had any contact with Law yourself. This was the position which I found myself in before embarking on University applications. Why, then, Law? Where does one get the idea to study it from? Why do you want to study Law – do you even want to study Law?

As you are reading this blog, these are the sorts of questions which you may currently be asking yourself. Perhaps not, but you should certainly be expecting admissions tutors and interviewers to be looking for answers to them! There are therefore three reasons why you should read widely this summer before your applications:

  • First, to enable you to discover more about Law and its many different areas. This will help you decide whether you would enjoy studying it (and perhaps which parts in particular) for three years.
  • Second, to prepare you for applications and interviews, thus giving you the best possible chance to shine and demonstrate your motivation and interest.
  • Third, to give you a basic grounding from which you can kick-start your undergraduate studies and ‘hit the ground running’ when you arrive at University.

So what should you be reading?  Elsewhere on this blog two particular books have been highly recommended: What About Law? and Letters to a Law Student. I cannot endorse these suggestions to you more strongly; both are excellent. I would recommend starting with What About Law? before moving onto Letters to a Law Student. This is because each of its seven chapters discusses a substantive aspect of the Law so will enable you to see if you actually might enjoy the content of a Law degree. If you find yourself thoroughly bored by the actual subject matters of each subject, then a Law degree probably isn’t for you. Otherwise, you will want (probably need) to know more about the practicalities of researching, applying for, and studying Law, which Letters to a Law Student gives excellent accounts of. This will enable you to see if you are suited to studying the Law, not just whether it interests you.

One other introductory book which you might also enjoy is Glanville Williams: Learning the Law (14th ed). This book will thoroughly, but concisely, explain the workings of the legal system as a whole along with its methods and skills involved. It will provide an overview of how the courts work, the divisions between legal subjects/areas and enable you to grasp the basic framework of the British justice system.

Not really an ‘introduction to Law’ type book, but another good (and short!) read is The Devil’s Advocate by Iain Morley QC (a criminal Barrister). This book describes itself as a “short polemic on how to be seriously good in Court” and outlines how to be a seriously good advocate. Many of you may wish to become Barristers yourselves in which case this is an excellent book because over the next few years you’ll have to do a lot of mooting competitions which are basically mini-mock trials where students will be given a legal scenario and asked to debate the academic aspects therein. Even if you don’t want to become a Barrister, many of you may have interviews in which case you’ll certainly be expected to talk and hopefully persuade them to admit you – this is a perfect little guide for that purpose too!

I’ll be putting up another post by Jack tomorrow, suggesting some fiction books that might be of interest to prospective Law students, and offering some other thoughts on studying law.