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 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.

Entry 35

Today I had the doubleheader of Equity & Trusts and Tort Law.

In Equity, we continued to look at secret trusts and this week we examined the use of half secret trusts. There was one glaring thing to note from the class, is that you cannot be the beneficiary and trustee of a secret trust. That would just make you the legal and equitable owner, in two different capacities. The courts will only strike this stupidity down. At least there are only a few cases to learn.

We also looked at the justifications for secret trusts and I can only agree with my lecturer. It doesn’t make sense. There is just an inconsistency in the way the Lords have gone about justifying the laws of trusts. When I decide to use a secret trust (of course I am going to use one), then I would definitely use a fully secret trust. Just a much cleaner and more straightforward tool.

In Tort, we did not spend that much time on cases, though it was a relatively short lecture. Instead, we spent quite a bit of time in the lecture going over an exam question which was not allowed. This was quite useful, as I have been grappling with this issue for the last couple of weeks. So, the process of looking at what is expected with new examples was not only informative but also reassuring.

Entry 34

Back to University after an action pack weekend!

So, a quick update on yesterday. I had to hand in my Public Law essay, while I had written most of the essay about two weeks ago, after going to office hours and having a class about what is expected in my essay, I had to redo my essay with what is expected from me regarding the class. Namely, to use the cases presented to me in class. This links today where at the end of my day, I had another set of office hours regarding problem questions. The way I would tackle these questions, which would also explain why I was having trouble with contributing to class, was that I would not consult the case law first. I would follow my natural instincts of what would be the logical solution to the problem presented and then see how case law could be applied in this situation. In essence, I was trying to induce what I thought was the correct argument, rather than deduced from the case law. Overcoming this barrier, won’t be difficult. However, I do think that I will need to sit down for longer periods to work on this. It might also explain why I enjoy land law the most (yes, the last couple of weeks are an exception), even if I do deduce something, I have to relate it the statute which gives me more of a definitive answer.

This morning I had a tutorial in Tort Law, and we just went over the one essay question and one problem question, both relating Psychiatric Harm. I don’t have much to say on the topic, other than there is quite a lot to be desired. The current state of the law is that the common law courts seem to be afraid to change the current standings and want parliament to take over. We then look at parliament and see…. well, what can only be described as a shamble, where psychiatric harm is not exactly on top of the agenda. The issues relating to cases about Hillsborough were seeing your sibling being in physical harm, as not a good enough reason for causing trauma (as a given) is ridiculous. What about your best friend? Nope. I think that the Judges on the case must have had no relationships beyond their own nuclear family. Otherwise, I cannot imagine how anyone could see this as being reasonable.

This was followed by Public Law this week, which was about Judicial Review and how it works in English law. It is a depressingly boring topic, though incredibly important. How do you review agencies that do work on behalf of the government and who can hold them accountable? It shouldn’t be dry as it is. I did make one change today, which is to type up my lecture notes, during the class. Honestly, I did get more written down than before. The reason I haven’t been doing so was that I expected my exams to be handwritten and thus wished to practice for it. However, I have found out that I shall be typing my exams and thus I will make a transition across. Though I will probably retain writing out cases by hand. As cases are not about all the facts that happened (not unimportant though), rather what does this case mean?

And with that, I’ll leave you.

Entry 33

The end of the week! And quite early for a release of my blog.

Today I had one of those marvellous 9am starts (seriously should be a criminal act against students) where we had a wonderful lecture about the loss of control and diminished responsibility, which is a partial defence against murder. And only murder, can’t say that I loosed control after necking down someone’s pint for a bet in a pub (and I know that some of the readers will be disappointed by that fact). The notable change over time is there have been more restrictions for the jurors before they are allowed to take this into account. This could make sense if there has been an abuse of the system, but I wouldn’t be shocked to see a rise in the number of people using this defence over time. There are more people. Not that much of a jump to see an increase in a raw number of people having the issue. The one really great thing about this issue is the fact that I got here the lecturer say this quote out loud: “…his head was fucked up.”

I also had a tutorial in Contract Law today. We just went over the two questions set today, which are based on the concept of consideration. Nothing really that tricky and a simple idea. The only thing to take note off was the limited ways that one can evaluate contract law, there is an exhaustive list (which I am still compiling), which opens the door for analysis. This means that I should be able to tackle any question with this list memorised and a good knowledge of the cases. In regards to considerations, the one thing that you may wish to know is the difference between a conditional gift and a unilateral contract. A unilateral contract would require you to do something. So, let’s say that I would give all my readers $100* if it were sunny tomorrow. That would be a conditional gift. If I said that I wanted you to go somewhere sunny tomorrow; that would be a unilateral contract.

Finally, I had Public Law tutorial today, and it related to my visiting office hours yesterday. We went through some exam answers and what they did well and what needed improvement. However, looking at the workload for the next tutorial. Well, that’s

Entry 32

So today was a long day.

Had a quick drop in a session regarding my public law essay. While I’m sure we are going to talk about structuring public law essays in class tomorrow, but it was good that I got a bit of a head start. I’ve already written my piece, but I’ll probably re-write sections (read the whole thing) to make sure that I’m hitting the rubrics at each level to show my understanding of the topic.

This was followed by my Land Law lecture. If you remember what I said yesterday about land law, I was not looking forward to it today. However, I was pleasantly surprised by how much it cleared up. What happened? The lecturer went over some of the sections of the Land Registration Act that we hadn’t already been through. The same things that I had been tearing my hair out (and figures why I couldn’t spot them in my notes. Yeah, I know…what an idiot). So that was quite a calming on my general nerves and helps explain why I struggled so much with the Tutorial. Still, need to go to office hours to clarify everything.

After this, I had an EU law lecture which we looked at the enforcement mechanisms of the EU. While the Commission doesn’t have Carte Blanche over the enforcement mechanisms, they do have a compelling voice and almost undisputable role. Don’t worry the ECJ can have disagreed with them, while that does not end the situation it does mean that States have the opportunity to defend themselves over complaints at an official hearing. It’s quite a straightforward concept.

After this, I went to a talk held by the department, who had invited the head of the EFTA court to give a speech on the EFTA court and what his personal thoughts are on Brexit and the future of Britain regarding EFTA. I’m not going to say everything that was discussed, but he did say that he hoped to see the UK inside EFTA for the future to create a possibility for Nations to work together within a single market but not as a political Union. A two-system Europe. However, as it has been noted by him and many other people (regardless of the facts); for Remainers it’s not European enough, for Brexiteers, it’s too European. Who needs compromise when you can insult the other side?

I wish that this was the end of my day, but I need to sort out my contract law work for tomorrow! So better get cracking.

Entry 31

These Champions League games are definitely prohibiting me from writing as much as do. However, I’m not going to stop watching Spurs, I have a relationship with the club. No relationship is too strong of a word. Bond? No, relationship. I’ve even written a post about it (click here to read about it, and here for the follow up).

Let’s start with yesterday. The first thing was an equity and trust tutorial, and it was quite a difficult topic for me. We were discussing the constitutions of trusts. While there are not loads and loads of cases, I will have to spend some of my weekends re-reading the textbook. It is quite difficult to understand what is happening from the off. Thankfully the class helped clear up some things, but again my answer to the problem question is seems to be off the mark. It’s not that I’m not misusing cases. Instead, I keep on messing my length. I seem to have a paragraph at most. I just struggle to go through the cases in as much detail, rather than (what I do) just quote them. I need to show that I understand the circumstances, well I think so, but I have to book some office hours to talk over this. I definitely cannot work this out in the blog post. (Shame. I know)

Following this I had the first lecture in administrative law which I have to say was a waste of time. All the information could have been sent in an email (or was already there in the handout). We spent about 40 minutes talking about the next section of our Public Law course. However, we have such limited time on the course, it could have been used more efficiently. Looking at my notes, I wrote: “Stop talking about lectures in the META!” He’s done it again! Again! When we finally spent 30 minutes talking about the judicial review system, it picked up, and I hope that it relates to Tort law as this is about Governmental Organs being held accountable. As somebody who lives and breathes politics (current affairs and academics) this is one of the most exciting areas. Especially in the news. The number of times you see a department failing may seem worrying. However, it is also a sign that their people are fighting to fix the system. People believe that system can work. That’s pretty positive.

Following that, I had what can only be described as a nightmare. No, that’s too positive of a word. Maybe a tormenting experience of Land Law. It wasn’t because the tutor was horrible, it’s just the first time I really felt out my depths. Before and during my tutorial. I read two different book chapters on the topic, and I still didn’t get. Then in the class, the tutor just breezed through the topi. I was just lost. I wrote down loads of notes, but I there is far more work for me to sort out in the coming days. Need to work my knowledge of the Statute as well.

I also had student-staff meeting.Let’s just say I’m glad I bailed early for Tottenham.

Today (Yeah, I underlined it.)

Started the day with equity and trusts which was, as always, an excellent lecture. We ended the issue of non-charitable trusts. How can we have things that are not businesses or charities legally hold property (think political parties, though I’m sure that some people would claim that their party is for the public good. My opinion on this issue, don’t associate with these people. Plenty of fish in the sea, as they say).  Not too tricky of a situation to sort out, in equity. Just go through a contractual approach, with a network of rights and rulebooks. Also make sure in the rule, that no one can walk away with the money. We moved onto secret trusts and how they work. I would love to tell you about it. However, it is a secret…. Nah I’m just messing with you. Two types, fully secret and half-secret. This whether or not they are mentioned on the will. Now you might be against it, why should you be able to hide your intentions? Well, first of all, you have the right to privacy. Why should you tell, though there are the people who say: Doing nothing wrong, nothing to hide. Well, my first thought is if that’s the case with their internet history; What are they doing online? Missing out on sooo much.  You might want to protect someone. Why should the family know that I preferred one person to another and that’s why I gave them all the details to my banking accounts in a diary (or whatever valuable property you want to insert, say a family heirloom)? Yes, some people will abuse it (like the issue with pets last week), but if people want to do something. They’ll find a way. (yeah, the constant capitalism indoctrination I keep pushing). The only significant thing for you (the reader) to remember. Communicate your wishes before death. Not the hardest thing to do.

Finally, I had tort law where we looked at vicarious liability and how this relates to employers being liable for what their employees did. As always in Tort, we looked at loads and loads of cases. Not much to say, but sometimes the courts (in my opinion) have got things totally wrong. The actions by the employees are sometimes would make an imbecile look like a Nobel Prize Winner for Physics. Who thinks smoking at a petrol station, is a good idea?!? Fuel + Flame = Explosion. It’s not rocket science (maybe not the best analogy, but you get my point). Utterly ridiculous.

Just like the length of this post. Damn! Nearly 1000 words. Hope this makes up for yesterday.