Just in case you are interested

European Law in the United Kingdom
UKAEL Annual Lecture by Sir Jonathan Faull

Thursday 14 December 2017 at 6pm
Great Hall, King’s College London, Strand Campus
Followed by a Drinks Reception

Free to UKAEL members and students
Please contact kerstin.wachholz@kcl.ac.uk to book your place

European Law in the United Kingdom – Sir Jonathan Faull KCMG

“My purpose is not to lament, reminisce, engage in wishful thinking or consider paths not taken. It is rather to celebrate the British contribution to a work of great beauty, European Union law. The metaphor of architecture is often used to describe the structures of the EU and some of the designers and builders are in this room. The process will continue without us but will always have a major impact on life in this country, so our engagement is not at an end.  The study and practice of EU law will continue to be of great importance in and for this country. It may become a foreign law, but I think it will be less foreign than any other, including that of common law countries with which we share a rich legal tradition and many business, professional, academic and personal ties. Why do I say that with such confidence? Because EU law is the organising principle of our continent. It was our law for decades and its terminology and concepts are now embedded in many parts of our domestic law and will remain so for a long time, whatever repeals and amendments follow our departure from the EU.”

Sir Jonathan Faull has spent 38 years at the European Commission where he worked for many years in the Directorate General of Competition. From 1989 to 1992 he worked in the cabinet (private office) of the competition Commissioner (Leon Brittan). He was the Commission’s Spokesman and Director General of Press and Communication (1999-2003), Director General of Justice and Home Affairs (2003-2010), Director General of Internal Market and Services (2010-2015) and Director General of the Task Force on the British referendum on membership of the EU (2015-2016). He is Chair of European Public Affairs at the Brunswick Group and the author of many articles on European law and policy; co-editor of a leading work on European Competition Law; Visiting Professor, King’s College London and College of Europe, Bruges; Emeritus Professor, Vrije Universiteit Brussel; Member of the Advisory Boards of the Centre for European Reform and the Institut Jacques Delors Notre Europe.  He was knighted in the Queen’s Birthday Honours in June 2017.

Entry 43

Just coming back from Tottenham vs Brighton. Game ended 2-0 to Spurs. It’s the last time I’ll see the team this year, though not too sad that I won’t be standing in the freezing British winter. So again, apologies for any confusion regarding spelling or grammar.

Today started off with a lecture in Land Law and we continued with our look at mortgages. Mortgages are not what most people would call exciting or interesting, however the law regarding this area is  relatively straightforward. That’s my favourite thing about land law, you can always go to the statue book and rule will be there. That’s not to say that there is no case law, but it’s not as overwhelming as Tort Law. The lecture we had today was about the remedies of mortgages and the rights of the borrower and borrowee when it comes to a default in the mortgage. While the borrower has a large amount of rights, when it comes to the sale of the property/land, the rules regarding how the money is settled is interesting as there is priority for the cost of the sale, which could leave the lender in negative equity or if they hold off and sell later, a poor market can really harm the lender (even when the courts are being generous towards them).

After land, I had Tort. As always Tort is case heavy, but today it wasn’t as much as normal. We explored the laws around product liability and since the law has been modernised through an EU directive, there is a clear cut way of understanding what should be done and what are the acceptable defences. Since there are a limited number of defences, what you see in day to day life is an overwhelming number of warning labels which state the obvious (think of your pack of eggs that state that the potential allergen is eggs). I agree with the lecturer, if there are far too many warnings on products to prevent liability, then people will disregard the warnings (or not read them at all). The policy question is, are the rules there to help ensure that the customer can sue in absence of the warning or are the rules about ensuring that the most important danger is made clear and allowing more cases of people doing things that could make it to Harry Hill’s TV burps? Just for entertainment purposes alone, you should pick the latter.

Entry 42

Today I just had Administrative Law, where we continued our exploration of judicial review. It is also the start of the last week of the term.

If you haven’t been following for the last couple of weeks, I have not been the biggest fan of this part of the law. Today was no exception, though I will say that I did find it more interesting than the previous lectures.

We explored the grounds of judicial review which can be summed up as a public body going beyond its realm of jurisdiction. The courts prefer the Latin term, ultra-vires. Judicial review is used when there is illegality, irrationality or procedural impropriety, which is another way of saying when the public bodies do something they are not meant to do, something stupid or don’t follow the correct rules to do something in their own powers.

I only want to talk about what public bodies are allowed to do. Our lecturer said along the lines of the following: private citizens can do anything the law doesn’t mention, while public bodies are only allowed to do what is said in law. I don’t entirely agree. Private citizens cannot do anything, as you can be punished retrospectively in common law. Just have a look at marital rape. Just because the law hasn’t caught up, doesn’t mean that it won’t. Regarding the limits of public bodies, I do think that bodies such as councils should be allowed to do things beyond the stated scope of what they are allowed to do. If my council can provide me with a service that is cheaper and better than the private sector, then why would I not want this to happen? Before there is groaning from the libertarians, take the example of something that could be regarded as a public utility such as broadband lines. If the council could outsmart the market, then why should I put up with companies that are useless (looking at you BT/Openreach)? I’m not going to set up my own cable for me, it’s not feasible, but if the community did, why not? What if the council made that decision by itself? I don’t see a public policy problem. This is not saying, let them run free. Just use a bit of common sense and don’t let the business lobby decide everything.

 

Normally I do not add anything personal, but it was fantastic catching up with some of the UCL gang!

Entry 41

Another early morning start today. I ended up arriving at University at 08:20 and have been regretting it all day.

Today in criminal law we finished off gross negligent manslaughter and then moved onto non-fatal offences. Honestly nothing exciting or jaw-dropping at this point, however, I have noticed that issue of causality and intention still pay a more significant role than I expected before coming onto the course. This is seen in the break-up of the differences in the types of crime, depending on their mens rea [while the types are actus reas].

Afterwards had a lecture in Contract Law (which is also my next coursework piece).  We just went over a question regarding promissory estoppel and had a brief chat about the course ahead. Nothing to note.

Finally, I had public law tutorial. I mentioned it earlier in the week and the amount of work I was putting into it. I do not think I ended up with a strong argument. Instead, I came up with a line of reasoning relating to visa laws and regulations, which if we even assume that my terrible case is correct, the point of the exercise was not really about the argument that I presented. It was more about how the class worked as the group, before and during. I would say that we royally failed on this account. It’s not because we didn’t try, there was some effort on our half, it was the fact that nothing followed through. Messaged each other that we need to meet up, but nothing really substantial came from this. The class was a mid-tier according to tutor. I’ll take it for now, but it shows that there is a lack of time to doing anything on the course that is not studying and fitting a bit of pro-bono work, let alone do some group of work that fits in everyone’s timetable

Entry 40

Another bizarre day.

Today my land law lecture has been rescheduled for next week. So doubling up on Wednesday and Thursday.

So, all I had was a lecture in EU law at the end of the day. Hence, I have no intention to strech out what I have gone through today [Action for Annulment]. The topic is quite technical and my understanding of it (at the moment) is not good enough to simplfiy the topic in my own words.

Things to note, is that to bring action against the EU by yourself, you need to prove to the courts that your case either effects you or a closed group (a group that cannot change in personal, no matter how convaluted in the future), that you don’t take your time (within two months) and make it clear where there is a matter of injustice (though that should a general rule when going to court).

Otherwise, the best advise is to read the treaties, because….puts on record player…the treaties matter.

 

Entry 39

Feeling better today and I ended up going to the Tottennham vs Apoel match (Spurs won, so all is good in the world).  So this is another post typed on the cell, so apologies for any incorrect spelling mistakes or grammar issues.

We had an odd Equity lecture today. It was the last for the term and we spent most of it going through some revision material. It barely lasted an hour, however if we are ahead of schedule, why not? The main lesson from the lecture, is to make sure that my work is up to date before the end of the holidays, as waiting for the end of the year is just a death wish.

This was followed by Tort were we started to examine cases involving visitor liability. Understandably, children are given free reign over the world (most of the time) and are not seen as fully responsible. The issue of a rational agent vs Clapham omnibus man was evident again. Listening to some of the cases you think: “Really, how did you think jumping into a pond head first was a smart decision?” While the courts agreed with me in this particular case, when dealing with problem questions I still need to remind myself that law accepts the fallibility of man and that I shouldn’t be going too hard on the people I read about.

Finally I will quickly talk about my public law work. For the class on Friday we have to represent a German citizen post Brexit who has lost their right to work. And quite frankly I think he is screwed. There is no international treaty to help him (just loads of recommendations), as he is not a refugee or an asylum seeker. Can parliament do this? Yeah, it can do what ever it wants. Would it? Maybe not intentionally…but hey, have you seen the UK government? They make the simple look impossible and the make the impossible a fantasy.

Entry 38

For those not in touch with me personally, I have not been well over the last few days and have been experiencing a migraine over the weekend where I was bedridden and even turning on the lights was too much. What this led to, was the most unproductive weekend of my life in ages, though understandably so. What this meant, is this week I have not any work prepared for my classes. Not something I recommend, this morning I was struggling to stand, but the Gujarati inside of me just screamed that I needed to make value for money (regarding the course, I mean, it is 11K!).

Today I started off with Equity, and I couldn’t keep my eyes on my computer screen. It was just far too bright, and the room in general with the lights on was too much. Honestly, I didn’t gain too much from the tutorial as I was feeling dizzy. I could have gone home after this, but I decided to go the public law lecture as I was already there.

I felt better in the lecture, though my laptop was playing up a bit in the first-half. We had a quick recap of judicial review and then moved onto domestic tribunals. It’s not that interesting of a topic (at least for me) when looking at the rules of dog racing and performance-enhancing drugs. Or even horses for that matter. When it comes to domestic tribunals, we were told that if it was a consensual relationship and that the body doesn’t complete governing functions, you cannot bring a case to a public law court as it is a private matter. Here begins the difference between the two sets of law. I want to do more reading on this before commenting as I think there is more overlap than accepted at the moment but this is based more on belief and not on law.

Finally, we had a  land tutorial were we looked at mortgages. Now we haven’t covered mortgages fully in lecture, so having a class on it felt premature. However, in the breaks, I was able to get some questions done. My answers when coming to an opinion (not the law) seem to be far harsher than any legal bodies. This is not too worrying regarding my legal career as I do not intend become a judge. I link this to my rational agent perspective, where I do not think of the Clapham Omnibus man, but the fully rational being with full information. While there is no pressing problem, this shortfall in economics seems to be showing more cracks daily where it becomes a more untenable position to hold; especially considering the case law.

Enrty 37

Today is a bit of an odd day, as I only had one lecture and as my tutorial was cancelled. So, I shall have very little to type about this time around.

We are continuing our exploration of types of homicide, with a focus on unlawful acts of manslaughter and gross negligence manslaughter. I’m not going to go into the different tests for both and what main differences are (I hope that you can spot that in the name). Instead, I will talk about an idea concerning if acts are legal or illegal.

In the case of gross negligence manslaughter, it is up to the jury to determine if the act was grossly negligent. However, if you do not know [and cannot know] if your act is illegal at the time, is it fair to punish a person if they cannot be aware that what they are doing is punishable? My first instinct is no, of course of not. That would be retroactively creating punishments. Surely, there would be a mercy rule, where the first person would get a pass and onwards people would get punished for doing the same act (as we know it is illegal now). Then you start to think about it. And now you think differently ( I do at least). It’s how the common law system works. Rather than planning for every conceivable scenario, deal with them as they arise. Allows the legislator to be free and then gives responsibilities to the courts to sort this out (and if they disagree, they can legislate).

Let’s take a step back. When do things become illegal? When the courts decide? From the beginning of time? As far back as one is able to litigate (depending on limitations) and if so, can I prosecute on a deceased person’s behalf? Some arbitrary date? Admittedly, I don’t have an answer to this question (nor need to in the immediate future). However, I’m leaning towards the beginning of time. You can look at something and just ask, anyone with respect for another person would know is wrong. Sometimes, an apology won’t do.

 

Entry 36

Today started off with the tutorial in EU law. We were going through on how to answer a problem question accurately regarding EU law (this seems to be a running theme this week). I feel as though I’ve written the following quite a few times now: the treaties matter! Do not ever forget this. For learning purposes, it makes things quite simple for myself. Learn the essential statutes related to each topic and Bob’s your uncle! Obviously one could just look them up in the statute book, but in a time-pressured exam, it’s better to know them 100% (or at least all of it and have it tabbed).

After this, I headed off to my Land law lecture, where we started the law of mortgages. Let me just say, while it is seemly straightforward, there is a ton of work. For this just stand-alone section, we have around 5-6 hours worth of lectures! Also, we were informed by our lecturer that this part of the law is an essentially, for all intensive purposes, a standalone section. This means that I have a choice to make, I could just ditch this part of the law and not bother with it (though if I ever went into a practising land lawyer, I would have to know) or keep it to answer the most uncomplicated and straightforward questions for the exams. At the moment, I am leaning to learning it well, not just for the exams, but also I expect that my mother will ask me hundred-and-one questions about her set of mortgages. It’s not much to ask for, considering the support that I have been given to pursue this.

Finally, I ended the day with a lecture in EU law. Today we looked at the role domestic courts have concerning the ECJ when dealing with references to the court. We looked at whether this was a vertical or horizontal relationship. The answer to this depends on the court in question, as the courts that cannot be appealed against have been granted the right to interpret EU law for the entirety of the EU. This relationship would suggest a horizontal style one, however with the role of supremacy and the ECJ wanting to ensure that EU laws are interpreted correctly (whatever that is meant to mean), then it holds supremacy (as you may recall from previous blog posts/ non-binding opinion poll campaigns). It’s quite a touchy subject, but it makes sense that the EU holds supremacy as it about looking after the common market. How can have a “common market” with different rules inside? That’s why we have deference to the ECJ. Quite simply, it’s spelt out in the treaties.