Some advice from a Professor on my year abroad particularly stuck with me this summer, therefore I decided to do something proactive on the thought. The Professor taught U.S. Criminal Law but told our class one day “The best way of understanding judgments is to know about the author. How they grew up, what career did they have, and most importantly, what types of legal theory lead them to come to their conclusions.” My professor believed by following this method, we could accurately predict how a Justice would rule over a particular issue, especially by knowing their previous views. I thought about this, and did a little research, coming to the conclusion that nobody I could find has complied any brief biographies of the justices that were of note. Therefore, I decided to compile this myself, and add a few notable case briefs into the equation…
Honestly, I do not know whether this is just for myself, or whether I am writing this “book,” as I seem to refer to it as, for publication. Even if I just make it publically available online, I hope it will benefit the students to follow myself in the future. But at the same time, I want to be able to show on my CV (Resume, to those in the United States, I know that CV’s are different there…) that I have not only achieved something, maybe recognised and enjoyed by others, but that I came across a problem, and used my own initiative to complete the task myself. This is why publication seems more appropriate, but then again it means that the standard has got to be much higher, and who would really want to publish a book of its kind. As I am no academic, I do not feel any of the major education publishers would take myself seriously, but at the same time, a publisher who may publish my work might not reach the appropriate audience, university/college students.
I’ve also decided not to really tell anyone about this work either, because I do not want them to feel that I am wasting my own time, or feel like they are pushing myself toward a particular decision. My parents nor my sister know. The people I have told are actually recent additions to my life, because neither of them will pressure me, or know the full circumstances of my life at the moment, and I do not want to feel pressured or fail to reach an achievement I am not necessarily trying to achieve.
Athough I have not worked on it recently, I have been thinking about what I would like to write, and thinking about what I am going to research next to complete the task. I have mainly been focusing on writing my case briefs, which are longer than the usual college requirements, but are detailed so a student can understand the full meaning of the case. The reason I am doing this now is because I have found that case briefs are usually longer to produce than the individual judge’s profiles, which I can easily complete two or three in an evening. Therefore, when I am at university. Case briefs for college or Law School tend to only be 1-2 sides long, double spaced, Times New Roman Size 12, and cover one major Constitutional, or other legal, issue. My case briefs are more 3-4 pages long, but that is okay because because they cover all the legal issues, and therefore are going to naturally be longer. Going back to what I have seen today, it is already at least 120 pages long, and contains a word count surpassing 21,000. It is no where near complete. I am probably only around 1/4 of the way through a first draft infact, dependent on what I will choose to write and continue with.
Because of all of this writing, it has made me wonder whether I should have considered a dissertation at university, but I know that I tend to perform better on my exams than I do coursework, therefore I opted without. I also do not know whether producing a piece of work as long as a dissertation would have been beneficial for me at this time, and I would not have wanted it to take my passion away from writing the book in due course.
What I think this has taught me is that I do enjoy what I study, and I definitely like to read about things outside of my studies which are related. That should not be a surprise to those who know me, as I basically have my own personal law library with the books that I have collected throughout my education. I definitely have a passion for what I do, and hopefully that will not stop me from expressing this in the future. But for now, I think it is time to go back to my writings once again!
Yesterday, in the United States of America, we saw the destruction of democracy. Whereever you were in the world, you could see the images, live, of the terror that reigned down on the US Capitol Building, stopping Congress in its tracks. This destruction of democracy was incited and inspired by the leader of the United States, President Trump. Those people who were protesting, who were roiting, who attempting a coup d’état of the United States Congress and the Presidential leadership going forward, are not patriots of America, and they are not defenders of the Constitution of the United States, or defenders of Democracy. They are allowing an authoritarian dictator, somebody who does not like to relinquish power when they need to, and cannot accept “no” for an answer, to rule supremely over a nation. They are destroying theircountry. They are destroying our country.
Yesterday, there were scenes of terror visible on our screens worldwide. There were scenes of destruction. These people stopped votes from taking place. They stopped argument. If that is what they want to beleive is democratic, then they do not understand what democracy is. In fact, they are fighting against what democracy is in its most simplistic form. They have been lead by a President that is no better than a facist dictator at this point, to beleive exactly what he says.
The words of a President, and the words of a leader, are some of the most important words we as a society hear. They are words which we follow. Some of us take those words spiritually, others look for meaning between the lines. Some people take those words literally. Those words are important. Everything that we say is important. As a leader of a country, people are going to listen; people will take what you say literally, regardless of whether you intend for those words intepreted by the people in a literal context. They will listen to what you say regardless of whether it is true or untrue. Therefore, when you potentially incite violence by those words, or even use words which could be interpreted by some as inciting violence, and in this case, inspiring violence, it is not okay; it is beyond the realms of acceptable language to be used by a leader of a country, especially the President of the United States, who is, after all, is the leader of the free worldsupposed to be the Leader of the Free World. These allegations that the Republicans, that Trump Supporters, have lost an election because of “voter fraud,” and that it was stolen by the Democrats, are wrong, and need to stop. Any politician, and any senior or authoritative figure who is repeating these claims, do not support democracy or the freedom of the American People. Instead, they beleive in the Freedom of Hatred, and that only.
These political figures who are these self-proclaimed political & democratic “fighters”, and that includes people such as Republican Senator for Texas, Ted Cruz, don’t support your freedom. They support “freedom” for a select few, usually themselves. That is why they beleive in this freedom of hatred. These people “beleive” and support the Second Amendment’s Right to Bear Arms not for your protection or the protection of American ideals, but for the protection of their rights, and their ideals. They beleive in these freedoms and these rights on the grounds that they can kill and they can intimidate people by enforcing what they beleive are their rights. I will reiterate; they do not care about your rights, they only care about their rights. They did not care that 81 million Americans voted for President-Elect Biden; they only care about the fact that 74 million Americans voted for President Trump. They only “care” about the First Amendment’s right to the Freedom of Speech when it supports their speech and their ideas; they do not support your opposition to that speech, or speech which disagrees with their viewpoint. In fact, they hate that kind of speech. This speech is usually only protected by them so that they beleive they have the right to hate upon others, and to defame them. They beleive in taking people’s rights away. These are people’s rights to choose, people’s rights to privacy. They only beleive this to enforce their ideals, and so that they can incite and inspire further hatred. They only care about making people suffer. They beleive in the right to supress other people’s rights; that is so that they can enforce their ideals, and their ideology, upon the people of the United States. That is not freedom, and that is not democracy. They are not fighting for the Constitution, they are fighting against it.
There is no right in the Constitution of the United States of America to intimidate another person.
There is no right in the Constitution of the United States of America to tell another person that their voice is not equal, their vote is not equal (or invalid), and that they, as citizens of the United States, are not equal.
These people are not upholding the Constitution. These people do not know what the Constitution stands for.
In response to yesterday’s tragedy, I have seen calls to invoke the 25th Amendment. At this stage, I am unsure as to whether this is the right thing to do, both legally, and logically. Prima Facie, it seems the most logical step, as it reduces the power of “President” Trump to only be a ceremonial role, and gives Vice President Pence the power to make Presidential decisions, at least until the time that President-Elect Biden will be inaugorated. However, in the light of yesterday’s events, and analysing the political uncertainty and instability of the United States at present, I would be scared that invoking the 25th Amendment, and / or proceeding with impeachment proceedings against “President” Trump and the Senators and Representatives who challenged the certification of the election, as well as called for these protests, riots, and violence, will incite and inspire further acts of violence, and compromise our democracy further, as well as the lives of many citizens of the United States, regardless of who they are or what position they are in right now. We need peace. We need security. We need to uphold our democracy. In a perfect world, I would be calling for impeachment, and the 25th Amendment to be followed; in a perfect world, these events would not have happened, nor would I be scared of further violence erupting as a result. There is less than 2 weeks left until President-Elect Biden becomes President Biden. It will be a long and painful 2 weeks, but we need to pull through this and be strong. Yes, impeachment is ideal, and quite frankly, “President” Trump needs to be stripped of his title as well as imprisoned for his actions of yesterday alone (let alone the other offences which he may be responsible for), but right now we are not in an ideal situation, but an uncertain and fragile one. Our priority is safety, regardless of its cost.
A Supreme Court Justice having been appointed by President Bill Clinton in 1993, she has became a notorious name in the non-legal world for her attitude towards life and her career, from never stepping down when calls were made due to her failing health, and her fierce defence of her beliefs. An American Patriot, she faught for what she beleived were the best legal outcomes for the United States, and out up a fight where she needed. She also showed a strong sense of compassion towards people of all different backgrounds and circumstances. Therefore, her life should be celebrated with a full tribute.
It will seem strange that I will strart this tribute with a quote from somebody with a very different political stance, yet it seems most appropriate. Former Senator and Republican 2008 Presidential Candidate John McCain (Arizona), a person with strong dislike towards Justice Ginsburg’s politics, I beleive would describe her as an American Patriot. I one of his most famous quotes on Patriotism to describe why Ginsburg was a credit to the United States:
“Nothing in life is more liberating than to fight for a cause larger than yourself, something that encompasses you, but is not defined by your existence alone.“
Former Senator John McCain (Rep. Arizona), in his memoir “Faith of My Fathers”
Hopefully, it is now apparent why I chose McCain’s quote to represent the legacy which Justice Ginsburg had, because it truly describes her attitude towards life and law. In this case, she was a true American Patriot, for fighting for something she beleived was right for a nation, and not fighting for a belief which would only benefit herself.
I have therefore decided to write this tribute to look at her Legal Career, as well as her most notable quotes and opinions during her time in the Supreme Court of the United States. It would be fitting to look at her career outside of the law, in an area some would say she made the most impact. However, that legacy will be remembered by the Public at large. I want to look at something I don’t think people will remember as much, but should be just as important.
Ginsburg’s Legacy: Her Legal Career
The impact of Ruth Bader Ginsburg should have been noticed early in the start of her career, if not during her legal education. Having been admitted to Harvard Law School in 1956, she eventually transferred to Columbia Law School to be closer to her home and husband, earning her LLB here. During this time, she became the first woman to have peer-reviewed published articles in both the Harvard Law Review and Columbia Law Review, all while bringing up her first child. She also graduated top of her class in 1959.
The thing I find truly inspirational is her struggles to get into the legal sector for a career. Supreme Court Justice Felix Frankfurter famously declined her a role as a Law Clerk, citing that no woman had ever done the job before. It did not matter that she had a top law degree from one of the most prestigious law schools in the United States, she did not have the status needed to succeed into an excellent position. If anything, this is what probably made her a fierce and strong lawyer. Eventually, Justice Ginsburg did get a position as a legal clerk for Judge Palmieri, working on the US District Court’s Southern District of New York, where she stayed for two years.
Her own litigation and advocacy work started in the early 1970s, where she co-founded the Women’s Rights Project at the American Civil Liberties Union, arguing for and writing briefs for many consitutional issues. She even engaged in oral argument in front of the US Supreme Court as an attorney, with Justice Rehnquist (who would become the Chief Justice, and she would serge alongside during her Tenure at the Supreme Court) engaging in legal comedy with her.
President Jimmy Carter appointed Justice Ginsburg to the Federal Circuit as a Judge in 1980. From 1980 until her promotion to Supreme Court Justice in 1993, she would serve for the United States Courts of Appeals DC Circuit. Notably, this is where she gained a relationship with a good colleague of hers (even though they differed in political opinion), the late US Supreme Court Justice Anthony Scalia (March 11, 1936 – Feburary 13, 2016). When they both shared the bench together, they would have some of the strongest dissents. However, they also bad one of the best friendships known within the Supreme Court, sometimes being described as “best buddies.” It seems, just like the Michelle Obama and George Bush friendship, happiness and loyalty can cross political boundaries.
In August 1993, Justice Ginsburg was finally admitted to the Supreme Court of the United States, following a successful nomination by President Clinton, replacing former justic Byron White (June 8, 1917 – April 15, 2002). It would be here where she would gain the respect of the nation, and people around the world, for her actions, opinions, and fierce argument. This would also pave the final career step she would take, sadly passing while sitting on the Supreme Court as a Justice.
It should also be noted that Ginsburg had an academic career, as well as a practical legal career. Being a good lawyer on your feet is all well and good, defending your clients and their arguments. However, being an academic allows for you to be persuasive, to mark change on the law by writing, and most importantly, being able to think critically about the law, its fundamental flaws, and how to improve the legal situation with a better solution than is currently being used. Academic lawyers do seem to be in favour on the current US Supreme Court (such as Justice Neil Gorsuch, appointed by President Trump in 2017).
Ginsburg’s Legacy: Her Words
Ginsburg was definitely in favour of equality, but it is wrong to say that her beliefs were a stretch beyond the Constitution.
One of the most memorable arguments Ginsburg made was in light of same-sex marriage in Obergefell v. Hodges, thereby stating:
“How could that — how could that be, because all of the incentives, all of the benefits that marriage affords would still be available. So you’re not taking away anything from heterosexual couples. They would have the very same incentive to marry, all the benefits that come with marriage that they do now.”
Justice Ruth Bader Ginsburg, Oral Argument 1 of Obergefell v. Hodges (April 28, 2015)
Ginsburg actually went on to further defend the rights of same-sex couples in terms of marriage in this case, by arguing a point which should be able to advance human rights. If it was not for the context of the statement already being made clear, it is unlikely that a person could understand whether this quote was about LGBTQ+ rights, Civil Rights of the Races, or any other minority protected right you could think of:
“It is not to start an impact. It’s leaving a group out altogether. It’s not that more of this group and less of that group.”
Justice Ruth Bader Ginsburg, Oral Argument 1 of Obergefell v. Hodges (April 28, 2015)
Many would argue, including the late Senator McCain, that Justice Ginsburg went beyond the Constitution in giving her legal opinion, and by following her decisions in certain cases. However, I would have to respectfully disagree with that, as Ginsburg seemed to have strong respect for the Constitution, and that State’s still had sovereignty, particularly in their lawmaking powers, along with state judiciaries:
“It is not our function to construe a state statute contrary to the construction given it by the highest court of the state.”
Justice Ruth Bader Ginsburg, Oral Argument of Bush v. Gore (December 11, 2000)
None of these quotes may seem memorable, and there are definitely more which will be remembered better by the public as a whole. But by viewing these, and remembering the way in which she would argue as a Justice, let alone legal advocate, one can work out how she would attack an argument. The Obergefell v. Hodges arguments show that she was a strong believer in the Constitutionality of the 14th Amendment Protecting all types of people, and that the rights of people, particularly those who are religious and believe that same-sex marriage was against God’s wishes, were not being taken away by the law allowing for people to have the same rights of legal protection, and that the traditions of marriage had changed in the last 100 years. In Bush v. Gore, Ginsburg showed that she had a belief that the state’s rights to govern itself effectively were more important than the Supreme Court’s view on such statute, so long as it was Constitutionally correct. However, in both, she was ready to pick at the finest details of a legal argument, waiting for it to completely unravell.
A Final Goodbye
As this is a tribute, I do not want to debate why or why not her seat on the US Supreme Court should or should not be assigned to a new Justice at this time. Not only is this a complex debate in itself, today is marking how important the life was of RBG (as she was affectionately known), and the effect of which she had on the United States, as well as lawyers (and non-lawyers) around the world.
From many lawyers around the world, whether academic or practicing, new or retired, may I wish Ruth Bader Ginsburg a peaceful rest, and remind the world that she will never be forgotten, and will always remain an inspiration for people past, present, and future.
We are in the midst of a total lockdown in the United Kingdom due to the COVID-19, or the Coronavirus Crisis. It is understandable that we need to stop the spread of the disease, and I support the fact that we should all be acting collectively to contain the crisis as much as possible and relieve our healthcare system. However, I think it is important to highlight this should not be an excuse for democracy to be threatened, and I think people like myself have a reason to worry about these issues.
I feel democracy and autonomy are both being threatened. These are my reasons why:
Local Council Elections have been Suspended for May 2020
We may face a complete lockdown in Britain
Local Council Election Suspension
This may seem a justified reason, but I will attempt to persuade you this is not. The first reason why follows the fact that elections were cancelled before schools were suspended, meaning we were happy to allow children to spread the virus in a large gathering, but would not allow for the counting of votes. Why are we worried about spreading the virus in polling stations when shops, cafes and restaurants were open during this time?
My second reason is that we have the ability to have postal votes in the United Kingdom, so polling station closures surely do not matter. We can just give everyone a postal vote, right? I usually vote myself through a postal vote, because it allows me more flexibility when it comes to election day to not be home. Surely this means elections can take place, and people could be tested who are required to be in polling stations. As postal votes are counted over a longer period anyway, we could adjust to that, and it would likely reduce the number of people needed in the voting process anyway, containing and reducing the virus anyway. Many other people are still going to have to work in this crisis, and democratic society should be pushing for this; elections, after all, are imperative to a democratic society, regardless of what other crisis is going on.
If you think my reasoning is unjustified, consider what was in the Conservative Party Manifesto in December 2019. The Conservative Party want to repeal the Fixed Terms Parliament Act 2011, which will mean we are NOT guaranteed to have elections every 5 years. In our legal system, we are not guaranteed to elections anyway due to Parliamentary Sovereignty (hence, we need a Constitution in this country, and fast), which threatens the democratic process anyway regardless of government. But a party which expressly wants to remove the right to elections every 5 years, and not state how they will change the system to guarantee democratic accountability via a vote is a worry that more people should be concerned about. Will Brexit give our government a mandate to not hold elections in 5 years time? What about if there is a terrorist attack or a strike? Will that mean that elections are suspended that year too? What about if people catch the flu, or we have an economic crisis? Will that also be a legitimate time to not have a general election or a local election?
Lockdown:
A lockdown is a threat of personal autonomy. At the end of the day, the Government ‘Advice’ is purely that: advice. Yes, people will ignore it. Those people are a threat to themselves, and they are a threat to other people too. But many people are following the advice too, which is an attack on personal autonomy.
I am personally respecting the fact that I should not be going outside and keeping my distance, and have only visited places I have needed to either to continue with my studies (I had to collect books from the Library at University to continue with an essay we must still complete, and this could not be done earlier due to the questions for the essays not being released until Friday afternoon (20th March 2020), or when I have had to go and get food supplies such as milk to continue to live. I have stopped myself from associating with friends publically or privately, although I needed to collect a book from a friend before I returned home, so they left it on the porch to their house; therefore we had no social contact.
I also do not trust our government to stop the lockdown process when the crisis has ended; in fact, I can see them telling us the crisis is continuing when it is not. I might be over-reacting, but this is more than a gut-feeling. They may say the whole world is facing this situation, but North Korea says that all the time. The fact that there is no other news apart from Coronavirus makes me worry there is something to hide in all this, and makes me feel that our government is losing its legitimacy, particularly as Brexit is also supposed to be taking place (although we have left the European Union, we are still in the transition period).
If people choose to act in a particular way, that is their right. We have the freedom to decide how to live our lives.
What will the future hold?
I can see that by the time I open this blog post to the world, the legislation could say we cannot criticise the government in this process. If we lose our Freedom of Expression due to there being a ‘National Emergency’ or a lockdown, and I can also see that happening with the ’emergency’ legislation, then we no longer live in a democracy, but a dictatorship. Only time will answer this one; I just hope for the best, but I fear for the worst.
I sit here in bed, in the United Kingdom, the day before our General Election in 2019 (11th December 2019, if anyone is interested), recovering from a short term illness. In the news for the last few days, there have been two political stories which have dominated: 1. The General Election here, and 2. President Donald Trump’s Impeachment Process in the United States of America. And that has reminded me, I have some reading to do outside of my University studies over Christmas; if I have time with all of my exam preparation.
Impeachment is a word that is not really used within the United Kingdom, but dominates more in the United States of America. Nevertheless, it has been used in the United Kindgom, but even less in recent years than it has been used in the United States, which is also very little! Yet, it is a fundamental part of America’s Constitutional Law, yet it is hardly spoken about. But what is really the process when a president gets impeached? Is it only a president who can be impeached?
Firstly, it is important to remember that the Impeachment Process is governed primarily by the Constitution itself, and not by the House of Representatives in the United States, like they would probably want you to believe. It is the Constitution which sets out the grounds for impeachment, which can be found Article II Section 4 of the Constitution of the United States, and reads the following:
“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
Gerald Ford famously said the grounds to impeachment, on grounds of “high crimes and misdemeanors” were much more open than this, stating that they were:
“Whatever a majority of the House of Representatives considers them to be at a moment in history.”
Although I do not think Gerald Ford is legally right, he does make an interesting point here. As the House of Representatives mainly govern the process, they are the ones which get to decide what is a “high crime and misdemeanor” at the time of the impeachment. They are the ones who ultimately define this process at the time and place, therefore it is ultimately up to them.
I think Cass R. Sunstein’s book, Impeachment: A Constitutional Guide, sums up the process rather well, and allows us to really consider what the fundamental problems are. It gives an idea of what a “high crime and misdemeanor” could be, and does stay that it does not have to necessarily be criminal, but can be morally wrong. This is exactly how the unsuccessful impeachment process began over former President Bill Clinton.
Much of the debate has considered whether President Trump has really committed an impeachable offence. As a famous Twitter user, Political Speaker (in his own sense) and former Comedian / Actor John Cleese replied:
“Now I understand! Clinton lied about a blow-job UNDER OATH. Trump refuses to say anything under oath, so his lies are NOT lies under oath.”
This was in reply to an earlier by another user, Steve Johnson, who stated in reply to an earlier tweet by Cleese:
“It wasn’t that Clinton LIED about the blow-job… He lied under oath!! That’s perjury. Trump never betrayed our defence policy. The US has a joint anti-corruption investigation treaty with Ukraine, and asking them to look into Burisma falls under that treaty.”
These tweets are not academic by any means and do not address the problems we face with impeachment directly. But what they do address is what the public may think: “Are the current grounds of impeachment suitable for a conviction?” If Clinton’s blowjob was not criminal or a ground for impeachment (by being neither a “high crime” or a “misdemeanor”), then will Trump’s impeachment crimes be seen in the same light. Nevertheless, it was about the lying under oath rather than the act itself which made it more of a legal issue.
But then, if we go back to consider Sunstein, he says this:
“Some offences that are not crimes are nontheless impeachable – punishing on political enemies, trampling on liberty, deciding to take a year off, systematically lying to Congress and the American people. Such actions count as ‘high misdemeanors'” (63)
This makes me believe that the “lying under oath” argument no longer stands, and it is the “systematic lying” which will be at the forefront of the impeachment process for President Trump. Whether the Mueller report will play into this, I do not know, but I think it will be likely…
So now, I go back to lying in bed, reading my book, and trying to recover from my illness. Obviously, the world will continue on around me. Politics will go on, and maybe the U.S. or the U.K. will descend into political crises, or maybe not… But these impeachment proceedings will not go away, and I am sure I will be commenting on them in days to come.
Company law exposes many questions rather than gives answers. It is probably the closest the U.K. gets in regards to a codified and written constitution and asks questions about separation that not even Parliament gets to ask itself.
There is definitely a question in whether a company should be its own legal person. Anyone who has a brief understanding of company law will know that the company is to be treated as one. However, it is a group of individuals acting together in many senses, so why should it be classified as acting on its own.
I think there are numerous reasons as to why the company should be a separate legal person. First of all, it allows for accountability in regards to the company rather than the directors and/or shareholders. If the company was owned and operated by one sole person, then it would make sense to hold that person to account rather than the company on the whole. However, the difficulty arises when there are many people involved. In regards to a big multi-million-pound publically owned company such as Marks & Spencers plc, would it be right to make the shareholders accountable when there are thousands of them, many of them not being able to vote in the decisions that the company may take? But what about making directors accountable, when they are having to follow the instructions of the shareholders or risk the possibility of breaching their duties which they owe to the company.
Of course, the reverse argument is that no natural person does have responsibility for their actions. In law, however, this is not actually true. For instance, the company does have accountability in criminal law, where it can be fined for failure to inform Companies House of any changes. Further, a disqualified director can be sentenced for up to two years imprisonment for being in a directorship position. Although the law may only be brief, it does show that accountability for actions is accounted for by Parliament, and the company does have responsibility to act in the right way. Further, directors are also accountable to their members, and can face dismissal for failures.
It was in the nineteenth century which the House of Lords first recognised in the United Kingdom that the Company was its own separate legal entity. The case of Salomon v A Salomon & Co Ltd [1897] recognised the company was to be treated on its own rather than being another being of its operator and shareholder. Lord MacNaghten even stated that “The company is a different person altogether from the subscribers of the memorandum.” Not only was this reasoning adopted in the United Kingdom, but the United States of America applied this doctrine in the Jim Crow South when a black man by the name of Joseph B. Johnson was unable to purchase land in Virginia, because a specific covenant excluded “non-whites” from being involved in the purchase. Therefore, by setting up a company, which of course, had no racial colour, Johnson was able to persuade the Virginia Supreme Court into allowing the company to gain control of the land by not breaking the covenant (People’s Pleasure Park Co v Rohleder (Va. 1908)). Today, we give rise to the company being a separate legal person purely by s1 Companies Act 2006.
I have recently read some shocking statistics about how underfunded our legal system is in the United Kingdom, and what many of the consequences are. The thing is, any one of us could be involved with the criminal law system at some point in our lives, whether we like it or not. Could you afford a lawyer? Are you willing to put your house or your livelihood on the line should you ever face a wrongful prosecution? And what if you get wrongfully found guilty, are you able to appeal your conviction?
The thing is, many will argue that it isn’t really a problem for them, and it is not the job of the public to help these people out. But this is also extremely wrong and can be an abuse of the state against ourselves. If you do not qualify for legal aid, the chances of you getting your money back, even if you get acquitted, are extremely slim. The cut-off point for qualifying for legal aid is a household income of £37,500 per year. That does sound a lot, but I will put it into context. My own family may not likely qualify for legal aid, as they would just be on the boundary of £37,500 in regards to income. But at the same time, I get one of the highest student loan rates for my maintenance allowance because the government deem my family not to be able to support myself at university unsupported, even if I was to find employment along with my studies (which would be impossible due to the amount of studying my degree requires). And the thing is, criminal legal bills are not going to be a couple of thousands of pounds either. They can stretch to the point that people need to re-mortgage their homes, sell their homes, and frequently are still unable to afford the legal costs. And if they win, they get nothing back, and pay what has been appropriately named “the innocence tax;” the cost that you endure to restart your life following the state trying to wrongfully convict you. The thing is, you are not treated as being “innocent,” therefore the immortal words “innocent until proven guilty” may as well be discarded in modern English & Welsh criminal law. Instead, you are treated as being “not guilty,” but possibly “guilty, but with too much doubt” or “not entirely innocent, as it could have been you.” That in itself is starting to become scary.
The problem does not just stem from legal aid though, but also involves the fact that many lawyers are not being paid enough in modern days to support your case. This is not just a problem in the UK though and is well-known to occur in other countries, notably the United States of America. The problem is that within the US, it is argued that many charged ‘offenders’ are not being given a truly fair trial or passage through justice, as protected by Amendment VI, down to the facts of both low pay and stretched resources. This is ultimately down to the work of Public Defenders, which are kind of the equivalent of our duty solicitors within England & Wales at least. Like duty solicitors, the work of a Public Defender is extremely high in the volume of cases. Quoted lengths of time worked on a particular case for a charged offender can be as little as seven minutes per case, which is not a lot considering that a person could end up potentially being incarcerated. This is frequently the reason why in the United States, there is an increased pressure for a charged individual to take a guilty plea, often by threat, even if they are actually innocent in the whole ordeal. Let us not forget how little Public Defenders, Solicitors and Barristers actually get paid for being on legal aid in a defence case. In the United States, it often pays more to be a teacher than a Public Defender. The average salary in Tennessee for a Public Defender is $2,781 per month, which is 47% lower than the national average. In comparison, a Duty Solicitor may get paid £33,000, although the average is actually expected to be £30,500 per year. This does actually sound good pay initially, and it is often advertised that a solicitor will get paid £15 an hour. The reality of the situation, especially through the collection of evidence and the amount of times trials and other administrative proceedings get changed, the reality of the hourly pay is far much different. For a Criminal Defence Barrister, this can also vary between £12,000 to £30,000 a year in salary. It is important to keep in mind that for both of these occupations in England & Wales, one would need to complete 3 years undergraduate education at likely £9,000 in tuition per year (£27,000 total), and then either an LPC or Bar Course at around £10-15,000 for a year), without the extra expense of living and resources. Further, many Barristers are London-based, so one should also consider the added expense there!
One of the biggest complaints when it comes to Legal Aid is how it is spent. There is always constant talk that legal aid spending is too much, and that it is used in the wrong types of cases.
These are just two examples of how our justice system is underfunded in the United Kingdom. The thing is, it has been underfunded for many years, and in recent history has faced cut after cut in regards to the service it provides. Magistrates Courts have closed all across England & Wales, and concentrations of legal centres have become commonplace. Further, access to legal aid, particularly in civil matters, has ultimately dropped to extreme cases, meaning many people are not able to get the legal representation they fundamentally require and are increasingly being targeted and squashed by the state, often with tremendous and hugely consequential effect. In both the United States and the United Kingdom, this has even lead to circumstances where people are wrongly prosecuted, and cannot afford to fight the state. Is the imprisoning of people, just because they cannot afford to fight a court case when they are wrongly accused, the real meaning of a ‘Police State’?
The fact of the matter is that the UK’s criminal law system is beyond underfunded, and this will lead to criminal injustices. If i knew the answer to this, I’d be answering and changing this I’m sure. Hopefully, we will see some changes in the future, and hopefully it will be well-allocated funds rather than just adding funds into the pot by a government. However, that probably will not happen in the short term, and those who are most vulnerable in society will be the ones who suffer the most!
In light of Brexit and the other changes going on in the United Kingdom, I have frequently questioned about how our nation can ultimately protect its citizens by using a constitutional method which would enshrine our rights. Yes, it could be said that the Human Rights Act 1998 gives us some guaranteed rights, and is hard for the government to legislate above due to the fact that Declarations of Incompatability can be made, but ultimately this can be revoked by our Government at any time. In fact, this has already been considered by former Home Secretary and former Prime Minister May on numerous occations. This would have entailed leaving the European Convention on Human Rights, but there are numerous reasons that would have been a bad decision. However, the reasons for leaving the ECHR is probably a topic for another post.
One of the biggest concerns to having our own constitution stems from the fact that our legal system, through its principles, does not really allow for an enshrined area of law in the way a Constitution acts. The fact that Parliament is Supreme and can make and unmake any law would make a Constitution, or Bill of Rights, under the extreme threat of being taken away from us at any point. Although Parliament may attempt to put in a clause such as “No Parliament can override this” or “Any future changes require a supermajority.” the Supremacy of a new Parliament will always be the centre of our constitutional theory, and could mean any new Parliament could override any previous laws. This would mean our Constitution could be subject to being amended or revoked at any General Election, until strenuous efforts were made to enshrine the importance of Constitutional Theory so that the Constitution was the Supreme Law of the Land, like in the United States (which by the way, does not have a perfect constitution, and famously made one of the biggest legal and constitutional errors in history!)
It is not like in the United Kingdom, we do not follow constitutional principles. For instance, devolution is becoming more and more important to our nation, and it is definitely getting more and more support as we progress through time. In Wales, support for Devolution in 1997 was as little as 50.3% whereas today support is much higher and could be calculated as high as 71% by looking at whether Wales should be either independent, keep its current powers, or extend on these powers. In Scotland, the statistics are also similar, and the Independence Referendum of 2014 shows that the nation feels very separate to the United Kingdom, even though it voted to remain a part.
I think
Bibliography:
A.V. Dicey, Introduction to the Study of the Law of the Constitution (8th edn, Liberty Classics, 1982)
Boris Johnson is definitely causing a stir in the United Kingdom following his controversial move to attempt to block Parliament from a No-Deal Brexit. I wrote about this in my recent blog post ‘Well Britain Used to be a Democracy, but not anymore…” (Link Here: https://theautonomouslawyer.wordpress.com/2019/08/29/well-britain-used-to-be-a-democracy,-but-not-anymore/), and following news that the PM could be calling a general election, or the possibility of a Vote of No Confidence in the House of Commons, there is a good chance he may become the Prime Minister with the shortest Parliamentary term.
Having done some research, it seems that our current shortest PM in the UK was George Canning in 1827 (an unlucky year for short serving prime ministers as the second shortest PM, F.J. Robinson, only served 130 days also in 1827), at 113 days served. Boris Johnson is currently on 41 days as of writing this (3rd September 2019), and may not serve for much longer if he loses what majority he has in Parliament. If a General Election is called in the coming days (and may have been announced by the time this blog post has been published). Jeremy Corbyn is frequently seen as being too socialist for the United Kingdom, just in the same way as Bernie Sanders has been described as “too socialist” for the United States.
If there was to be a General Election called in the next few days, we are looking at the 14th October being the earliest date to vote. If (and this is unlikely) an alternative government to the Conservative Party majority (held together by an unofficial partnership with the Northern Irish Democratic Unionist Party), Boris Johnson’s term as PM would only be 82 days long, falling short of the current lowest serving PM by 31 days (a whole month). Therefore, in order for PM Johnson to not go down as the worst recorded PM in British History, as well as the shortest serving PM, he needs to wait until at least 14th November, 2 weeks after the UK is currently set to leave the European Union, before a general election occurs.
Further, PM Johnson’s time as Prime Minister is further questioned by the talk of Conservative Member Ken Clarke taking over both the Conservative Party and as Prime Minister in order to stop Boris’s undemocratic mandate at prolonging Parliament to halt a vote preventing a no-deal Brexit.
PM Boris Johnson deciding to suspend Parliament to pass a no-deal Brexit is not only wrong, but it undermines our whole idea of democracy.
If Brexit (The term used for the United Kingdom leaving the European Union) is truly about maintaining democracy and sovereignty within the United Kingdom, no Brexiteer (a person who voted to leave the European Union in the 2016 referendum) should support the move by Boris Johnson, because it directly conflicts with the idea of democracy dangerously. Yes, the referendum should be respected, and if the United Kingdom decides to leave the European Union without a deal, that is okay (legally, not politically, or economically, or socially … ) But our system of government, our law-making ways, are supposed to be the reason for leaving the European Union; therefore, if we are to leave the EU, then it must be done via the proper channels, and by respecting our law-making ways and system of government.
But many Brexiteers, and sadly the British public, see any challenge to the fundamentals of democracy which complicates Brexit as “undemocratic” and “not what we voted for.” They do not realise that in many of the circumstances, the whole idea of leaving the European Union is not being questioned, but instead making sure it is done correctly and safely so at least the country does not suffer as catestrophically as one might expect. Such example was how the British Media portrayed both Gina Miller and the High Court Justices preciding in the case of R (Miller) v Secretary of State for Exiting the European Union [2017] as being “Enemies of the People” as well as “Traitors” to both the United Kingdom and Democracy. The case, which eventually was heard by the Supreme Court, ruled that Parliament (as the Legislature) had to trigger Article 50 TEU, and it could not the Prime Minister or her Cabinet (as the Executive), therefore preserving how democracy operates in the United Kingdom. Therefore, these were not enemies of the people at all, but instead were individuals which wanted to protect the interests of the UK population, and make sure Brexit was completed properly.
With the current constitutional crisis which PM Johnson has added to, it seems that the Miller case is particularly important at enforcing the fact that it is Parliament that resides over Brexit decisions, and not our Prime Minister. Further, we have seen further judicial attempts to stop Boris Johnson in his tracks; not necessarily to stop Brexit, but to make sure that we leave the European Union in a way which coincides with our democratic processes. Recent news suggests however that PM Boris Johnson would in fact ignore either Parliament or the Courts if he is blocked in his attempts to unilaterally start a no-deal Brexit.
When I have had discussions with people over prorogating Parliament, they point out that John Major did the same during 1997. The democratic difference however is in its circumstances and uses between the two PM’s. PM Major prorogued Parliament following the annoucement of a General Election in the time of a political scandal. PM Johnson is attempting to prorogue Parliament to stop it from attempting to block a no-deal Brexit and unilaterally legislate for our country. This is a scary situation for lawyers, both practicing and academic, as they do not know what will happen next in the country. The reason we find this scary in the UK is because we believe in a way of thinking that Parliament is always Sovereign. This goes back to the days of John Locke and his ideology that the legislature is supreme (known as the theory of Parliamentary Supremacy). If Parliament is Supreme, it can legislate that it could have complete control of the situation, and could potentially halt all future general elections, and potentially give all legislative powers to a Prime Minister, therefore legislating to remove democracy. As the situation stands, any new government / parliament can legislate over a previous government,
Parliamentary Supremecy and Sovereignty are fundamental to leaving the European Union anyway. If Parliament was not sovereign while a member of the European Union, we would have been unable to trigger Article 50 or legislate to leave the European Union with the European Union (Withdrawal) Act 2018. Therefore the UK could not have lost its sovereignty to the European Union. But then again, there is a strong, false belief in a further Lisbon Treaty among Brexiteers which would force the UK to join Schengen and the Euro by 2020…
Brexiteers who voted to leave the EU purely based on wanting the UK to remain sovereign do not understand that the UK’s sovereignty cannot be taken away. This cannot be done in International Law or European Union Law, but cannot be done under our own constitutional beliefs. Because the UK does not have a written or codified constitution does not mean we do not have a constitutional system.
As mentioned in last weeks blog post, I come from a relatively stable background, but by no means are we wealthy. We also are not from a socially acceptable background for the law career. This may sound weird, and this blog is going to sound like a slight rant, but what I am basically concluding is this: Nobody is interested in me here in the U.K., law wise, because I am not of the right background or class.
Social and economic status, also referred to as class, is an important aspect of British society. One which makes me love the United States so much; it seems to have disappeared there! I may sound as if I am complaining, and in a way I am, but I have a good point to write about.
I have tried for the last three years to get some sort of work experience, either as a solicitor or a barrister, within the UK. Usually, I have applied for work experience programs, as well as local firms, myself. Because of the lack of success I achieved, I decided that I would also try through my university this year, which also failed miserably. Apparently, there were better suiters to the work experience program than myself. Although one firm did offer to take me on for work experience, which I gladly accepted, it was not actually what I was looking for. The firm actually focused in selling insurance, but wrote Wills on the side for many of its clients. Not a law firm, but at least some legal experience. As much as I can sound bitter to that opinion and may seem entitled, I think I personally have a right to complain here.
We are constantly reminded to build our C.V. up in order to attract future employment to us. Not only do I have significantly high grades for university, I undertake a lot of extra-curricular activities of my own. I am a Scout Leader. I am part of a separate organisation which volunteers to run events as well as specialises within a hobby I like. I enjoy travelling. I studied in the United States. I have worked on my Duke of Edinburgh award, and represented the Scout Association Internationally in 2015. I have participated in numerous business and community challenges throughout my education. I have held two jobs, with one of them working with challenging children and young adults, including those with disabilities such as complete loss of hearing. I have even been recognised by the Queen of England (and many other nations) for my voluntary work! Yet, I am apparently not good enough to qualify for the university work experience program?
Thankfully, through my own means, I managed to get work experience support from the continent. Two firms snatched me up in one city alone, one being a major US firm with a UK office! Why are they happy to take an English speaker abroad, who cannot speak the local language (apart from the GCSE grade C I got during my high school education), instead of taking me in my own country? It just does not seem right. I’ve been asked by people why did you not try and get work experience in the UK as well as why Europe? Is the UK not good enough? The reality of the situation was that the UK was not good enough, and I had to travel further afield to find unpaid (or so I thought) work. Turns out the European firms did actually want to pay me for my time, and I was not just treated as a person doing the simple, boring tasks, but I had proper work experience.
I think my answer is Europe could be my future. It makes sense, particularly following the mess that Brexit has resulted in. And the experience being in Europe has been extremely good.
The Autonomous Lawyer 