Author Archives: lawbod

A double-edged sword: Reframing Northern Ireland’s relationship with Europe and the world

By Lara Hatwell

The relationship between Northern Ireland and Europe has dominated the headlines since the Brexit Withdrawal Agreement was signed in 2020. This has largely been a result of the Democratic Unionist Party, the (then) largest party’s opposition to the Northern Ireland Protocol, and its subsequent refusal to elect a speaker, leaving the Stormont Assembly unable to form. Northern Ireland as a whole voted to remain in the EU, with the DUP the only major party to advocate Leave.

The Parliament Buildings at Stormont © 2024 Northern Ireland Assembly Commission

For the entirety of its existence, Northern Ireland’s relationship within the United Kingdom has dominated its politics, its culture and its people. The issue has become all the more prominent due to the repercussions of Brexit. But Brexit stands to represent something further for Northern Ireland, principally a fundamental change in its relationship with Europe and the world. Traits of isolationism, which can be seen creeping into British politics over the past decade, present hidden side effects for Northern Ireland. In the province, some of the most transformative legal changes of its history have only happened due to the intervention of international bodies.

For 26 years during the Troubles, Northern Ireland was under direct rule from Westminster. Since the formation of the Northern Ireland Assembly in 1998, it has seen six periods of suspension, notably from 2002 – 2007, 2017 – 2020, and most recently, from 2022 – 2024. It has even spawned a fun little website which counts the number of days Northern Ireland has been without a government. At the time of writing, it excitedly reads ‘Northern Ireland has had a government for 25 days!’.[1]

It is during these periods without a regional government, that the particular relationship which Northern Ireland has with the outside world stands out most clearly.

 

1981 – Dudgeon v. the United Kingdom

In 1967, homosexuality was in part decriminalised  in England and Wales.[2] In 1980, it would be decriminalised under the same conditions in Scotland, and in 1982, in Northern Ireland as well. For Northern Ireland, the pivotal point for law reform was the ground-breaking 1981 case which Jeffrey Dudgeon brought before the European Court of Human Rights. It was the Court’s first ever gay rights case and set a monumental legal precedent that countries criminalising homosexuality were infringing on human rights.

Jeffrey Dudgeon in Strasbourg for ECHR hearing 1981 © Copyright – Jeffrey Dudgeon MBE

The case had been lodged by Dudgeon (pictured left) in 1976, following a police raid on numerous men involved with the Campaign for Homosexual Law Reform, the prominent force campaigning for gay rights in Northern Ireland. The CHLR had been campaigning for an extension of the 1967 Act to Northern Ireland, but had met with considerable hostility from Northern Irish public figures – Ian Paisley’s ‘Save Ulster From Sodomy’ is perhaps the most famous – and lukewarm inaction from Westminster. Despite recommendations in 1977 from the Northern Ireland Human Rights Commission that homosexuality between consenting adults should be decriminalised, Westminster continued to look everywhere but at Northern Irish law reform. Rumours abounded in 1978 that potential reform had been shelved in order to appease Ulster Unionist MPs. [3] By 1980, any chance of legislation seemed far beyond the horizon. The Dudgeon case however, would change everything.

The case was heard in Strasbourg in April of 1981 and ruled in Dudgeon’s favour in October[4]. A victory at last for the CHLR, who called on Westminster, now found guilty in a European court of violating human rights, to finally enact legal reform. After a number of further prods, an overwhelming majority (168 to 21) approved the extension of the 1967 Act to Northern Ireland.

 

2018 – CEDAW[5] Enquiry

In 1967, the Abortion Act legalised abortion up to 28 weeks with the approval of medical practitioners in England, Wales and Scotland, but not Northern Ireland. In Northern Ireland, abortion remained illegal unless to save the life of the mother, or the pregnancy would result in the woman becoming a ‘physical or mental wreck’, conditions established following R v Bourne [1938] 3 All ER 615.

In March 2018, the United Nations’ Committee for the Elimination of Discrimination against Women (CEDAW) released a damning report about the abortion laws in Northern Ireland. It found the laws amounted to grave and systemic violations of human rights. The report recommended the state moved urgently to expand the legalisation of abortion and ensure no criminal charges could be brought against women or girls who underwent abortion.[6] It disregarded the argument of the UK government that they did not have responsibility for amending Northern Irish law as a result of devolution (at the time of the report’s publication, Northern Ireland had not had a sitting government for over a year). The CEDAW report internationalised what, for decades, had been a relatively contained domestic struggle.

Report published in 1989 by the NIALRA which pledged to do ‘everything within its means’ to extend the 1967 Abortion Act to Northern Ireland © Northern Ireland Abortion Law Reform Association

In June, a case brought to the UK Supreme Court by the NIHRC (Northern Ireland Human Rights Commission) was dismissed on the grounds that the NIHRC themselves could not bring the case to court.[7] Significantly, however, a majority of judges agreed that abortion law in Northern Ireland infringed on human rights. Change it seemed, was now on the horizon. When no change came, rumours abounded that abortion rights were being used to persuade the DUP (fundamentally pro-life) to return to government.[8]

Following this, Sarah Ewart, a prominent Northern Irish abortion activist, agreed to put the case to her name and in January 2019, she began a highly publicised case in the High Court.[9] With pressure piling upon the British government, a section was added to the Northern Ireland Executive Act, making it the Northern Ireland (Executive Formation etc) Act 2019.[10] Despite attempts by the DUP to call the assembly in order to repeal the Act, it gained royal assent in July. Over fifty years after the 1967 Abortion Act, reform finally came. A result of ‘bitterly fought, highly visible Pro-choice campaigns and… the findings of a CEDAW report secured by their work’.[11]

 

Repercussions

In the years since these two landmark events, further events have demonstrated that international bodies remain as important to change in Northern Ireland as ever. Following the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023, the Irish government announced they would pursue legal action against the UK government after being advised the Act breached the UN Convention on Human Rights.[12] In 2023, when Daíthi’s law (Organ and Tissue Donation (Deemed Consent) Bill) became trapped by secondary legislation, which required a sitting Executive, his parents declared they were willing to take legal action.[13] The implications were clear. By the end of the month, the British government had passed through the Act.

The NI Executive (February 2024) © Crown Copyright

The relationship between Northern Ireland and Europe has been the subject of much discussion since the UK’s withdrawal from the EU in 2020, but the relationship is one not so easily understood by the headlines. For Northern Irish social justice campaigns, their relationship with the outside world is a fundamental instrument for enacting change. In many cases, the final instrument. The pressure of international bodies allows these campaigns to move beyond the contained nature of politics within Northern Ireland, which remains extremely unstable. By moving beyond the province however, the democratic institutions of Northern Ireland are bypassed and their function appears to become obsolete.

‘The knowledge that the European Court will eventually force change has given the government unprecedented extra powers of delay and disinterest. It no longer needs to participate in standard democratic argument and discussion, rather it has exported its power. And necessary change is left to a process that is painfully slow, governed by lawyers and one which a government can prolong almost at will by shedding mounds of foreign office briefs and papers at every stage.’[14]

Jeffrey Dudgeon, writing in 1984, postulates as to what the intervention of international authorities may lead to in Northern Ireland. The province is left to watch on as neighbours such as the Republic of Ireland allow their citizens the opportunity to display their support for social  change.[15] Meanwhile, legislative change in Northern Ireland is achieved only by the few with the determination and resources to do so. Dudgeon’s prediction forty years ago appears to have come true. Now, as the Stormont Executive sits once more, it is granted an opportunity to rebuild its relationship with the public and work with individual campaigners to establish a cohesive legal and political process.

 

[1] Days since Northern Ireland had a government (howlonghasnorthernirelandnothadagovernment.com)

[2] It was decriminalised provided it was ‘in private’ and between two men above the age of 21.

[3] Peers, queers and commons, S. Jeffery-Poulter, p. 148 – 150.

[4] Dudgeon v the United Kingdom App no 7525/76 (ECtHR, 22 October 1981).

[5] United Nations’ Committee on the Elimination of Discrimination against Women.

[6] CEDAW/C/OP.8/GBR/1 2018 – paras. 83 – 85.

[7] [2018] UKSC 27.

[8] The Abortion Act 1967: a biography of a UK law, S. Sheldon, p. 255.

[9] [2019] NIQB 88.

[10] The Northern Ireland (Executive Formation etc) Act 2019, section 9. The ‘etc’ referred to the liberalisation of abortion laws and the legalisation of gay marriage, which still remained illegal in the province.

[11] The Abortion Act 1967: a biography of a UK law, S. Sheldon, p. 269.

[12] Troubles legacy act: Ireland takes human rights case against UK – BBC News .  Furthermore, the Belfast High Court has just found that the immunity clause of the Legacy Act breaches the European Convention on Human Rights (NI Troubles: Legacy Act immunity clause ‘breaches’ human rights – BBC News)

[13]  Transplant boy’s family would take legal action over law delay – BBC News

[14] Dudgeon, J., ‘The UK Supreme Court’, The Socialist, 5th March 1984, (https://jeffdudgeon.com/wp-content/uploads/simple-file-list/Gay-Rights/Strasbourg-case-article-by-Jeff-Dudgeon-page-1-of-2-in-a-BICO-magazine-1984.jpg)

[15] Ireland becomes first country to approve same-sex marriage by popular vote – The Irish Times, Irish abortion referendum: yes wins with 66.4% – as it happened | Irish abortion referendum | The Guardian

 

Further Reading:

*items are items contained within the Bodleian Law Library collections

Some items on display as part of the Law Library’s LGBTQ+ History Month Display. See Letters of the Law | Law Bod Blog (ox.ac.uk) for more info on our displays.

Roger Davidson and Gayle Davis, 2006, ‘Sexuality and the State : the Campaign for Scottish Homosexual Law Reform, 1967 – 80’, Contemporary British History, 20:4, pp. 533 – 558.

*Michael D. Goldhaber, 2007, A People’s History of the European Court of Human Rights. Law Library, Internat 575 G618.7a.

*Anne Hellum and Henriette Sinding Aasen (ed), 2013, Women’s human rights : CEDAW in international, regional, and national law. Law Library, Internat 570 H477.5a

Stephen Jeffery-Poulter, 1991, Peers, Queers and Commons: the struggle for gay law reform from 1950 to the present.

*Paul Johnson, 2016, Going to Strasbourg : an oral history of sexual orientation and the European Convention on Human Rights. Law Library, KM208.2 JOH 2016

*Austen Morgan, 2023, The Northern Ireland Troubles Strasbourg’s Article 2 in Legacy Cases: A Legal Essay. Law Library, KM201.N8 MOR 2023

*The Northern Ireland Abortion Law Reform Association, 1989, Abortion in Northern Ireland: the Report of an International Tribunal. Law Library, KN172.73. N8 NOR 1989

*Sally Sheldon et al, 2020, ”Too Much, too Indigestible, too Fast’? The Decades of Struggle for Abortion Law Reform in Northern Ireland’, Modern Law Review, 83:4, pp. 761 – 796. Law Library, Cw UK 300 M200. 

*Sally Sheldon et al, 2023, The Abortion Act 1967 : a biography of a UK law. Law Library, KN172.73 SHE 2023

*Hélène Tyrell, 2018, Human Rights in the UK and the Influence of Foreign Jurisprudence. Available online via SOLO.

Additionally, the Law Library contains the legislation and law reports relating to the mentioned cases and reforms.

Letters of the Law

By Wanne Mendonck and Katharine Matthews

 

If you have visited the Law Library over the last week you may have come across our new display Letters of the Law, which will introduce you to the wide range of material we have in the Law Library collection; after all, and as this display will hopefully show, the law really does touch most areas of life.

By zooming in on a number of relevant topics for the time of year, the display will try to guide you through the daunting variety of Law Library holdings. It will highlight how our class-mark system works, and look at some locations within the Law Library you may not have known about. All the material chosen will have a link to upcoming or recent anniversaries and interesting or important moments from (legal) history. You can find the display near the ‘new journals’ shelves next to the soft seating on Level 2 as you come in (or ask at the desk).

There are large maps to show you where in the Library these items usually live and we will try to include items that will encourage you to explore all four floors.

If you missed last week’s display, a quick look back:

Photo by ash_crow’s shared under CC BY-SA 2.0 DEED

Items from our collection at classmarks KM 201 (civil rights) and KA 65 (civil disobedience) were displayed for Martin Luther King Junior Day on the 15th January. This date is now a national holiday in the US. Information on the fight to get it recognised as a national holiday can be found on the National Museum of African American History & Culture here https://nmaahc.si.edu/explore/stories/15-year-battle-martin-luther-king-jr-day . More information on his legacy can be found on the King Center website here https://thekingcenter.org/ .

 

Letters of the Law also marked the anniversaries of the start of the trial of King Charles I, the launch of Wikipedia, and the adoption of the first Constitution of the Republic of Turkey. As the Law Library, we are obviously interested in constitutional histories, and if you are too, then remember we have Oxford Constitutions of the World available online (to OU members only) here https://solo.bodleian.ox.ac.uk/permalink/44OXF_INST/35n82s/alma991025213908407026 .

This week’s classmark is KN172.73:

On 22 January 1973, the supreme court announced its decision in the landmark case of Roe v Wade, a decision still very much in the news due to its 2022 overturning. It will no doubt continue to be much discussed: related books will be found in the library at this shelfmark, and a selection is now on display, as is the text of the supreme court decision itself.

We also remember the adoption of the constitution of India in 1950 (26/01) by highlighting relevant material from our extensive collection on level 1 of the library, from commentaries by leading scholars to the collected writings of B. R. Ambedkar.

If you are looking for Australian legal materials (Australia day is on 26/01), monographs are integrated into our Moys classification scheme on Level 2, and we have a large collection of law reports on level 1. For primary sources there is also Westlaw AU (for OU members) and there is free site Austlii here https://www.austlii.edu.au/ ).

The Bodleian Law Library, in a separate display more centrally in the main reading room, will also mark International Holocaust Remembrance Day and the UK’s Holocaust Memorial Day on 27 January, remembering the 6 million Jews murdered by the Nazi regime, as well as the millions of victims belonging to other groups subjected to Nazi persecution. See Holocaust Memorial Day Trust (hmd.org.uk)

Do pass by the Letters of the Law display if you are visiting the library. If you cannot make it here, know we will be writing some more blog posts that will go into more detail on some of the topics displayed and so stay tuned for this in the coming weeks.

Link to the Creative Commons licence can be found here  CC BY-SA 2.0 DEED

Merry Christmas and have a lovely winter break

A Christmas tree in the Bodleian Law Library

Christmas tree at the Law Bod

 

Michaelmas Term has just flown by  and so to our readers who are heading away from Oxford this week, have a great Christmas break.  For those of you who are staying in Oxford, we are open until 5pm on the 22nd December, although our opening hours will be changing on Monday 4th December to  Monday – Friday 09.00 – 19.00, Saturday 10.00 – 16.00, closed on Sunday.  If you need to know the opening times of any of the Bodleian Libraries, check on the library homepage, you can get that information from this page https://www.bodleian.ox.ac.uk/libraries.

Are you planning to keep on reading over the Christmas Vacation?  If so, here are some hints and tips:

Do take a look at your reading lists before you leave Oxford and check that you know how to access as much as possible online.

Don’t rely on just one database!  Make sure that you are confident using both Westlaw and Lexis+.  There is guidance here for Westlaw (you need to log into Westlaw first for this link to work) and here for Lexis+.  If you are needing to access any of the legal databases, information about remote access can be found on our list of legal databases here https://www.bodleian.ox.ac.uk/libraries/law/legal-databases  or look for those details on SOLO. Alternatively, come and ask for help from the Library staff before you leave Oxford or email law.library@bodleian.ox.ac.uk if you have already left.

If you haven’t already it is worth sorting out VPN access via IT Services here https://help.it.ox.ac.uk/vpn-help to aid accessing resources when ‘off campus’.

 Pile of booksNot everything is on a database!  Where possible, we have scanned some of this material and put it on our Law Bod 4 Students Canvas site here https://canvas.ox.ac.uk/courses/226789 , just go to the relevant subject tile to check.  If you are lucky enough to have a fully linked ORLO list, make full use of all the linked material.

Do you love hard copy?  You may be able to borrow some key texts from your college library for the entire vacation.  It’s worth asking and finding out.

If you need to read a chapter that is not available online, and you can’t borrow the book, remember that scanning is free in the Library.  You will need your Bodleian logon and password to log onto the scanners in the Library (you can set/reset your password here).

There is also a Bodleian Libraries scanning service but remember that if you are still in Oxford it is always quicker to come to the Library and make the scan yourself.

If you have a question or need some help, please don’t leave it until the last minute.  The Library will close with no enquiry service (email is not monitored) and there will be no staff onsite, from 5pm Friday 22 December until 9am Tuesday 2 January. 

Coming Soon

If you have one eye on Hilary Term already, we have a project coming up to help you get to know the Law Bod a bit better. The Bodleian Law Library will introduce a new revolving display in the main reading room, guiding readers through its shelf-mark system while highlighting interesting moments from each fortnight in (legal) history. Look out for ‘Letters of the Law’, from Hilary term 2024!

 

 

Have wonderful holidays!

Oxford Open Doors, 8-10 September 2023

The Bodleian Law Library is participating in this year’s Oxford “Open Doors” weekend on Friday and Saturday, 8-9 September 2023.  (The Open Doors events continue on Sunday, though the Law Library is not participating on that day.)  The purpose of the weekend is to enable a wider public to see interesting and important buildings, including many that are not normally open to visitors, and to learn about the activities that take place within them.

Most readers of this blog will be aware that we are one of the largest law libraries in the United Kingdom, but some may not realize that the St. Cross Building, completed in 1964, is a landmark in the development of modern architecture in Oxford.  It was designed by Leslie Martin and Colin St. John Wilson, two of the leading architects of the time, and is now listed at Grade II*.  We hope to show the building as a work of architecture and as a functioning library, with the hope that visitors will be able to see the relationship between these two aspects.

Visitors to the Law Library will be taken on tours on Friday afternoon and Saturday morning.  The tours are currently fully booked, but it is still possible to put one’s name on the waiting list.  And, of course, several other parts of the Bodleian are also open, as are a number of college libraries, and the Open Doors website includes a wide range of places throughout Oxford that can be visited.

Oxford Open Doors is organised by Oxford Preservation Trust in partnership with the University of Oxford.  It is part of an England-wide celebration of architecture and culture known as Heritage Open Days which began in 1994 as England’s contribution to European Heritage Days which began several years earlier.  There is a separate event in London, chiefly on the following weekend, known as Open House.

Event listings can be found on the websites of the organizations mentioned:
The A to Z of the Bodleian Libraries  –  https://visit.bodleian.ox.ac.uk/event/sep23/a-to-z-of-the-bodleian-libraries
Oxford Open Doors  –  https://www.oxfordpreservation.org.uk/content/oxford-open-doors
Heritage Open Days  –  https://www.heritageopendays.org.uk
London Open House  –  https://programme.openhouse.org.uk/calendar

 

Happy and glorious (and, we hope, not frustrated)

By Ronald Richenburg

As the first coronation in almost 70 years draws near, thoughts of history, tradition, ceremony, national pride, and contract law will fill many minds (the last of these perhaps to a slightly lesser degree than the others!).  At least since 2003, the various paperback editions of Treitel on Contract have used interesting paintings from museum collections as cover images.  In the current edition (15th ed. by Edwin Peel, 2020) the painting shows the coronation of Edward VII on 9 August 1902.  The precise date is of significance because the coronation was originally scheduled for 26 June but postponed to 9 August after the King came down with appendicitis.

John Henry Francis Bacon (1865-1914), "The Homage-Giving, Westminster Abbey, 9th August1902", painted 1903. Copyright National Portrait Gallery, London. (Creative Commons CC-BY-NC-ND 3.0) (Used on the cover of "Treitel on Contract", 15th ed., 2020)

John Henry Francis Bacon (1865-1914), “The Homage-Giving, Westmister Abbey, 9th August 1902”, painted 1903, Copyright National Portrait Gallery, London (Creative Commons CC BY-NC-ND 3.0) (Used on the cover of “Treitel on Contract”, 15th ed., 2020)

This created an array of problems that few people would previously have thought about.  Many manufacturers of memorabilia simply kept the original date, and this is what one generally sees on coronation mugs and other commemorative items in antiques shops.  But the problems were greater for individuals who had paid large sums of money for the use of rooms overlooking the route of the coronation procession in order to see the procession on 26 June.  Litigation naturally resulted.  There was also at least one case involving a different type of event that was intended to take place on that day.  These have come to be known as the coronation cases and they are an essential part of any discussion of frustration of contract.

Until the middle of the 19th century, contractual obligations were absolute and failure to carry them out made a party to a contract liable in damages even if fulfilling the terms of the contract had become impossible.  In 1863, in the case of Taylor v. Caldwell, 3 B. & S. 826, 122 E.R. 309, involving a music hall that had been hired for concerts to be given on certain days, it was held that both parties to the contract of hire were excused from their obligations after the music hall burned down prior to the dates of the concerts because there was an implied condition in the contract that the music hall would continue to exist.  This was the beginning of the doctrine of frustration.

The next major development came with the coronation cases.  The most frequently cited of these is probably Krell v. Henry, [1903] 2 K.B. 740, where a contract to use a room overlooking the route of the coronation procession was at issue.  It was held that frustration can be found to exist not only when performance becomes physically impossible (as in Taylor v. Caldwell), but also when an underlying condition that is essential to the performance of the contract ceases to exist.  In this case, the occurrence if the coronation procession was regarded by both parties as the foundation of the contract.

Other coronation cases and later cases reached what might be regarded as varying results.  So, for example, the fact that one purpose of a contract was frustrated would not release the parties from their obligations if other purposes still persisted.  And the courts certainly did not want to treat a change in the economic climate as frustration, as this would permit a person who had made what simply turned out to be a bad bargain escape liability.  Some uncertainties about liability were resolved by the Law Reform (Frustrated Contracts) Act 1943, but this was by no means a comprehensive solution.

In very recent years, the question of whether the outbreak of Covid can be regarded as a frustrating event has been of great interest and has been discussed on the websites of many law firms, often in the context of the general principles of the doctrine of frustration.

We will now see whether a coronation in 2023 gives rise to problems as interesting and as unexpected as those that arose in 1902.

A Statute Worth 90 Cheers

By Ronald Richenburg

Today, Saturday, 11 December 2021, is an important anniversary that no longer receives the commemoration that it deserves, being the 90th anniversary of the Statute of Westminster 1931. [1]  This was an act of the United Kingdom Parliament in which, most importantly, it was explicitly stated that no future act would extend or be deemed to extend to any of what were then known as the British dominions other than at the request and with the consent of the dominion in question.  Most of the limitations on the legislative powers of the dominions themselves were also removed.

It was only by a long and complicated process of evolution that the dominions became fully independent states, and one of the most important landmarks in that process was the passage of the Statute of Westminster.  Yet it seems that outside the field of constitutional law the statute is little known today, even in the former dominions where it is of particular importance.  On the 75th anniversary of the statute, in 2006, the Canadian newspaper The Globe and Mail published on its opinion pages an article with the title “A statute worth 75 cheers”, stating “It is a national disgrace that . . . [the anniversary] will pass with only perfunctory official notice and nothing in the way of celebration.” [2]  And my New Zealand colleagues tell me that they have no recollection of ever learning about the statute in the New Zealand schools.

One reason for the lack of knowledge of the Statute of Westminster may be that the evolutionary process of which it was part was so complicated.  In Canada the main national holiday is Canada Day, 1 July, commemorating the coming into force of the British North America Act 1867, [3] which created the Canadian confederation as “one Dominion under the name of Canada”.  (The act is now known in Canada as the Constitution Act 1867.)  But the creation of this new entity (albeit consisting originally of just four provinces) can be seen as a national birthday and is perhaps easier to understand and to remember than the gradual evolution of full national sovereignty with concomitant international recognition.

After 1867 Canada began to assert itself more firmly in international affairs and, most significantly, played a major role in World War I.  It was chiefly this that enabled Canada to be a separate signatory to the Treaty of Versailles and to be accepted as a full member of the League of Nations.

A similar process occurred in the other self-governing nations of the British Empire, and the Empire itself was increasingly referred to as the British Commonwealth. [4]  By 1931 the nations seen as essentially self-governing were Canada, Australia, New Zealand, Newfoundland (not yet part of Canada), the Irish Free State (i.e. before becoming the Republic of Ireland), and South Africa.  Beginning in 1907 they came to be described as “self-governing dominions” and later simply “dominions”.  But the word “dominion” was never defined with any precision, and, as described by Peter Oliver, “Without a more precise definition . . . , politicians could simply point to examples of nations that had acquired the status.” [5]

After 1907 a number of imperial conferences were held, in which representatives of the United Kingdom and the various dominions came together to discuss matters of mutual concern.  At the 1926 Imperial Conference the Proceedings [6] included reports of different committees, one of which was the Inter-Imperial Relations Committee chaired by the Earl of Balfour (Arthur Balfour).  The report of this committee contained what has come to be known as the Balfour Declaration of 1926, [7] which, in reference to the dominions, stated:

They are autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegience to the Crown, and freely associated as members of the British Commonwealth of Nations. [8]

What is particularly interesting is that the declaration did not create any new status (and the committee had no authority to do so) but, rather, seemed to be describing a state of affairs that already existed.  This view is supported by the Statute of Westminster itself, the preamble of which specificlly refers to the declarations and resolutions of the Imperial Conferences of 1926 and 1930 and states that

. . . it is in accord with the established constitutional position that no law hereafter made by the Parliament of the United Kingdom shall extend to any of the said Dominions as part of the law of that Dominion otherwise than at the request and with the consent of that Dominion.

But even if the principles of the Balfour Declaration can be seen as constitutional conventions, they would have been unenforcible in the courts, and the Statute of Westminster goes on to state that

. . . it is necessary for the ratifying, confirming and establishing of certain of the said declarations and resolutions of the said Conferences that a law be made and enacted in due form by authority of the Parliament of the United Kingdom.

In addition to ending the authority of the United Kingdom Parliament to pass legislation extending to the dominions other than at their request and with their consent, [9]  the Statute of Westminster also removed most of the restraints on the legislative authority of the dominions.  In particular, the dominion parliaments were freed from the restrictions of the Colonial Laws Validity Act 1865, [10] thus enabling them to pass legislation that was inconsistent with United Kingdom law, and they were also specifically authorised to legislate with extraterritorial effect.

What is also interesting is that certain provisions of United Kingdom law were specifically excluded from the general provisions of the Statute of Westminster.  However, this was due not to any reluctance of the United Kingdom Parliament to relinquish control but, rather, to internal considerations within the dominions themselves.  So, for example, the British North America Acts 1867 to 1930, which were the basis of the Canadian constitution, were protected in this way.  This was chiefly because of fear in Canada that the powers of the provinces might be eroded if the federal parliament could, in effect, amend the constitution.  It was not until 1982 that sufficient agreement on an amending procedure was reached, and accordingly the United Kingdom Parliament passed the Canada Act 1982, [11] giving Canada all remaining constitutional and legislative powers.  Similar considerations existed in relation to Australia, and it was only in 1986 that the United Kingdom relinquished all remaining constitutional and legislative powers. [12]

A countervailing consideration was that in some dominions there were substantial numbers of people who did not want to weaken links to the United Kingdom.  Therefore, in s. 10 of the Statute of Westminster it is specifically stated that the key sections of the Act would not extend to Australia, New Zealand, or Newfoundland until those sections (or any of them) were adopted by the parliament of the particular dominion.  This turned out to be of no consequence in Newfoundland as, after a financial crisis in 1934, it relinquished its independent status and became a province of Canada in 1949.  Australia adopted the key sections of the Act in 1942 with retroactive effect to 3 September 1939 (the date of British and Australian entry into World War II), [13] and (as stated above) gained full control over its constitution in 1986.  New Zealand adopted the relevant parts of the Act in 1947 [14] and assumed full control over its constitution in 1986. [15]

The above is a very brief and incomplete summary of a very complicated history.  There are different opinions about when the dominions should be considered to have become independent states, and it is difficult to ascribe a precise date, but the enactment of the Statute of Westminster was clearly one of the key events. [16]  So, to the 75 cheers offered by The Globe and Mail in 2006, we can certainly add 15 more today.

 

[1]  Statute of Westminster 1931, 22 Geo.5, c. 4.

[2]  Globe and Mail, 11 December 2006, https://www.theglobeandmail.com/opinion/a-statute-worth-75-cheers/article1329730/.  (Author not given.  Unclear whether the article is an editorial or an “op-ed” piece.)  (Last accessed 8 December 2021 when freely available, but one week later apparently inaccessible without a password.)

[3]  British North America Act 1867, 30 & 31 Vict., c. 3.

[4]  For a discussion of the increasing use of the name “Commonwealth”, see H. Duncan Hall, “The genesis of the Balfour Declaration of 1926”, Journal of Commonwealth and Comparative Politics (1962), Vol. 1, no. 3, pp. 169-193.

[5]  Peter C. Oliver, “Dominion status: history, framework and context”, International Journal of Constitutional Law (2019), Vol. 17, no. 4, pp. 1173-1191.  See in particular p. 1175.

[6]  Imperial Conference 1926, Summary of Proceedings, Cmd. 2768.  HMSO, 1926.

[7]  This should not be confused with the Balfour Declaration of 1917, which stated the British government’s commitment to support the creation of a Jewish homeland in Palestine.

[8]  Imperial Conference 1926, p. 14.

[9]  Many books on constitutional law, in discussing parliamentary sovereignty (or supremacy) have suggested that this provision is contrary to the doctrine that no parliament can bind its successor, but most of them also state that such a consideration would arise solely in theory and not in practical reality.

[10]  Colonial Laws Validity Act 1865, 28 & 29 Vict., c. 63.

[11]  Canada Act 1982, 1982 c. 11.  The relevant part of the act is known in Canada as the Constitution Act 1982 but is still cited with reference to the U.K. act.

[12]  Australia Act 1986, 1986 c. 2.  A corresponding (and nearly identical) act, also called the Australia Act 1986 was passed by the Australian Parliament (Act no. 142 of 1985) and took effect on the same day as its U.K. counterpart.

[13]  Statute of Westminster Adoption Act 1942, Act no. 56 of 1942 [Australia].

[14]  Statute of Westminster Adoption Act 1947, Public Act no. 38 of 1947 [New Zealand].

[15]  Constitution Act 1986, Public Act no. 114 of 1986 [New Zealand].  (U.K. legislation was not required for this act to be passed.)

[16]  For a discussion of the time frame in which the dominions attained statehood, see William C. Gilmore, “The acquisition of dominion statehood reconsidered”, Virginia Journal of International Law (1982), Vol. 22, no. 3, pp. 481-517.

Black History Month

Browse the following links to discover how the University of Oxford, the University’s Faculty of Law, legal institutions, the Inns of Court and law societies are marking Black History Month this year. Explore the range of events (many online) listed by the University, Black History Month and Blacknet, several of which celebrate Black excellence in the legal profession. You will also find links to articles and reports addressing equality and diversity in the legal profession and the Bar, as well as societies and groups for Black lawyers.

Contents:
1. University of Oxford
2. Legal Institutions
3. Inns of Court
4. Events related to law within wider organisations
5. Societies/Groups for Black lawyers

1. University of Oxford:

2. Legal Institutions

  • The Law Society:
    • Black History Month: a collaborative perspective – “We asked members of the profession to tell us what Black History Month means to them and what it represents.”
    • Ethnic Minority Lawyers – “We provide an opportunity for solicitors from black and minority ethnic backgrounds and their allies to have their voice for heard, allowing us to represent you effectively”.
    • Ethnic Minority Lawyers Division – “The Ethnic Minority Lawyers Division (EMLD) supports and promotes solicitors and their allies through the provision of career-enhancing events, information and networking opportunities.”
  • Women in the Law UK:
    • Sally Penni, founder of Women in the Law UK, hosts the podcast ‘Talking Law’ – speaking to leading lawyers about their experiences.

3. The Inns of Court

  • The Inner Temple:
    • Black History Month 2020: The Inner Temple asked members and students how the Inn can “do better” in the wake of George Floyd’s murder and as a result are taking actions to develop their inclusivity. “For Black History Month this year, we will be running a social media campaign to highlight black members of the Inn, past and present, who have shaped our justice system and blazed a trail for barristers of the future. Our Library are running a social media campaign to highlight the appalling incidence of deaths in custody of black people in this country.”

4. Events related to law within wider organisations:

5. Societies and groups for Black lawyers 1:

  • Black Solicitors Network :
    • “The Black Solicitors Network (BSN) was formed in 1995 to promote the interests of black solicitors, provide professional support and share information, inform and influence D&I best practice and participate in consultations initiated by The Law Society, the Solicitors Regulation Authority and Government and other regulatory bodies in relation to matters which affect black and minority ethnic solicitors.
    • A not-for-profit company, the Black Solicitors Network aims to be the primary voice of black solicitors in England and Wales.”
  • Learning for Lawyers Redefined
    • “REDEFINED – Learning for Lawyers is an alternative learning platform for aspiring lawyers from underrepresented backgrounds.
    • “We deliver a range of webinars & masterclasses facilitated by experienced practitioners, trainee lawyers & other professionals.”
  • BME Legal
    • “Founded in Hull, 2015, by Adeola Fadipe. The not-for-profit group is committed to supporting under-represented groups gain access to support and opportunities that will enable them to obtain pupillage at the Bar of England and Wales.”
  • Black Women in Law
    • “This group is to connect black women in the legal profession: barristers, judges, solicitors, paralegals and law students. This is an opportunity for us to support black women in their legal careers and to provide guidance to those who are looking to begin a legal career.”
  • Urban Lawyers
    • “Urban Lawyers is a charity founded by Tunde Okewale MBE, Barrister at Doughty Street Chambers. The charity is managed by a team of dedicated volunteers, some of who are practising Barristers and Solicitors.”
    • Urban Lawyers host promotional legal careers events for students, deliver a variety of workshops including career development, research young people’s attitudes to the criminal justice system, and offer a ‘law in action’ curriculum available to be taught in universities as well as schools.
  • African Women Lawyers’ Association
    • “The African Women Lawyers’ Association (AWLA) exists to help women of African and Caribbean descent who want to enter the legal profession and who want to progress their careers. We aim to provide support, advice, mentoring, training and networking opportunities for all of our members.
    • Our mission is to transform the careers and lives of African women lawyers around the world. We also seek to leave our members feeling refreshed, empowered and optimistic about their lives, their futures and their legal careers.”
  • Bridging the Bar
    • Our Mission: “At Bridging the Bar we believe that for any organisation to reach its full potential, it must reflect the diverse society that we live in. Whilst we recognise that a lot of good work has been done to create greater opportunities at the Bar, there is still a need to incentivise – and support – the organisations, and individuals doing this important work in isolation and the students from non-traditional backgrounds aspiring to a career at the Bar.”
  • BME at the Bar
    • “In 2018, a group of Black barristers practicing in the East Midlands met to seek to increase the number of Black practitioners within our profession.”

Footnotes:
1. Some of these groups were found through the article Black Lawyers on Working in the UK’s Criminal Justice System.

Edible Dormice, Christmas and the Law

Picture 1

The fat (or edible) dormouse (glis glis) might seem a surprising choice of Christmas animal: after all, it would usually be safely asleep from September until May, but it is an animal with a strong Oxford connection, thanks to the Mad Hatter’s tea party in Lewis Carroll’s Alice’s Adventures in Wonderland (1865). This was published some years before the glis glis was introduced to south-east England in 1902, since when it has spread, and there have been sightings near Oxford. I shall now argue the case for a link between glis glis, Christmas and the law.

Picture 2

There was a table set out under a tree in front of the house, and the March Hare and the Hatter were having tea at it: a Dormouse was sitting between them, fast asleep, and the other two were using it as a cushion, resting their elbows on it, and talking over its head. ‘Very uncomfortable for the Dormouse,’ thought Alice; ‘only, as it’s asleep, I suppose it doesn’t mind.’…

… This piece of rudeness was more than Alice could bear: she got up in great disgust, and walked off; the Dormouse fell asleep instantly, and neither of the others took the least notice of her going, though she looked back once or twice, half hoping that they would call after her: the last time she saw them, they were trying to put the Dormouse into the teapot.

The dormouse in Alice’s Adventures in Wonderland is stuffed into teapot, which may have been similar to a dolium or ‘dormouse jar’, a special pot that the Etruscans and Romans used to fatten them up for the table. You can see one in the Ashmolean Museum’s exhibition Last Supper in Pompeii. For the Romans, edible dormice were a delicious treat, surely suitable for the midwinter Feast of Saturnalia and therefore eligible to join the list of unfortunate edible Christmas animals, such as turkeys and geese.  Petronius writes of sprinkling them with honey and poppy seeds, while Apicius describes stuffing them with forcemeat and nuts before roasting or boiling them.*

Lewis Carroll’s dormouse lived in more fortunate times than his Roman antecedents, but not as fortunate as the modern glis glis which is a protected species under the Wildlife & Countryside Act 1981 and the Conservation of Habitats and Species Regulations 2017.

I didn’t find a dolium (dormouse-jar) in the Ashmolean shop, or even a toy dormouse, but they do sell finger mice, seen here with the statute that protects the glis glis.  I rest my case.

Picture 3

* For more information on dormice in Roman times, see Kim Beerden, “Roman Dolia and the Fattening of Dormice.” (2012) 105 The Classical World 227 accessed 18 December 2019
Image and quoted text credits: Picture 1: http://en.wikipedia.org/wiki/Edible_dormouse (Photograph: Peter Dean. https://www.flickr.com/photos/rowanbank/7887960488/  CC BY-NC-ND 2.0; Picture 2 with text: Text: Project Gutenberg’s Alice’s Adventures in Wonderland by Lewis Carroll https://www.gutenberg.org/files/11/11-h/11-h.htm accessed 18 December 2019. Image: New York Public Library Digital Collections http://digitalcollections.nypl.org/items/76cb54a0-029e-0135-793d-3bc75c18883f accessed 18 December 2019; Picture 3: Margaret Watson

Posted by the Academic Services Librarian

Electronic Legal Deposit and the UK Web Archive

It’s week 6 of Getting to Know the Law Bod and this week we are looking at both Electronic Legal Deposit and the UK Web Archive.  A brief introduction can be found below but come and check out our display when you are next in the Library, it is just outside the Photocopying Room on the main level.

 

Electronic Legal Deposit

 

Legal Deposit, which has existed in English law since 1662, ensures that the published output of the UK and Ireland is collected, preserved and made available within the six Legal Deposit Libraries for present and future generations. Did you know that new regulations came into force on the 6 April 2013 to extend Legal Deposit to materials published electronically and on the internet?  Print publications for legal deposit can be books, journals, sheet music, maps, plans, charts or tables. Electronic Legal Deposit also covers material published digitally such as e-books, e-journals, websites and blogs. Without the legislation the Legal Deposit Libraries would not be able to collect and give access to this important body of e only material. This is especially important as many academic publishers are publishing only in eformat.

 

The six Legal Deposit Libraries in the UK work together to archive and provide seamless access to electronic Legal Deposit material, with a growing collection of more than 5 million eBooks and eJournal articles. Material received electronically from publishers is saved in perpetuity by the Legal Deposit Libraries and due the legislation can only be accessed on library premises.

 

UK Web Archive

UK Web Archive  is where researchers can access archived websites blogs etc. Researchers can use this site to discover old or obsolete versions of UK websites, search the text of the websites and browse websites curated on different topics and themes. You can also nominate a website to be archived even your own!

For comprehensive information on how to access and use electronic Legal Deposit at the Bodleian Libraries, University of Oxford please see our online guide Electronic Legal Deposit for Readers and Reading Room Staff.

Scotland Yard v Mr X

Scotland Yard, the headquarters of the Metropolitan Police Service (Or Met), the territorial police force responsible for policing most of London OR a game where players must try and catch a criminal stalking the streets of London by ‘landing’ on them.

Scotland Yard Board Game by ivva reproduced under Creative Commons Licence

The game revolves around most of the players trying to travel around London using taxis, buses and underground tickets and trying to land on the same ‘space’ as the player who has been designated ‘the criminal’ or ‘Mr X’.  Catch is that the Mr X only has to show where he/she is every 5th go.  Players also have a limited number of ‘tickets’ for each method of transport whereas the criminal has their own tickets as well as any used by other players (crime definitely paying in this instance).

It all makes for quite an exciting (or stressful) game and it would be quite easy to link the game to wealth of criminal law resources we have.  However this Christmas blog shies away from the obvious and so we are going to look at taxis or more specifically Uber (which may or may not be considered a taxi).

One of the methods of transport in the game and in real life you need to be a bit more careful with (fewer tickets/more expensive) are taxis.  One may even be tempted to give Uber a call to save money.  However not everyone is happy with Uber, since its introduction in the UK there have been a number of legal challenges on various issues.

  1. In October 2015 TfL brought a case in the High Court, Transport for London v Uber London Ltd [2015] EWHC 2918 (Admin); [2016] RTR 12. The case related to the way in which Uber calculates the fares (drivers use an app) after looking at it, the court ruled that the app is legal.
  2.  In October 2016, in the case of Aslam v Uber BV  [2016] UKET 2202551/2015; [2017] IRLR 4, the Central London Employment Tribunal ruled that Uber drivers are “workers” rather than being self-employed. This means that they would be entitled to the minimum wage, paid holiday, sick leave etc. On appeal in November 2017, the Employment Appeal Tribunal  (UKEAT/0056/17/DA) upheld the ruling but Uber indicated that it would appeal again so watch this space as it will have legal implications on other similar employers.  If you are interested in looking for Employment Tribunal cases then you can look at a number of the subscription databases however cases BAILII (British and Irish Legal Information Institute) have selected Employment Tribunals for more recent years and Employment Appeal Tribunals.

  3. Grey Ball by Kristin Kokkersvold reproduced under Creative Commons Licence.

    Not so much a legal challenge as such but in September 2017 Transport for London announced that it would not be renewing the licence of Uber’s local service provider ULL(Uber London Ltd). TfL was concerned over a number of issues but an interesting element, according to the media, was the use of software called Greyball, I will leave it up to the reader to investigate the story behind the software but needless to say it could possibly allow users to evade the law and fly under the radar which brings us neatly back round to the game of Scotland Yard. Uber indicated that it would appeal against the decision.

 

 

 

For those interested, the licencing and regulation of private hire vehicles and operators and drivers within the City of London is governed by the Private Hire Vehicles (London) Act 1998.  Transport for London is the licensing authority (under the act) and they have the power to prescribe further requirements through regulations (s.32).  An abstract of current legal requirements for drivers and operators can be found on TfL’s website but as the documents suggest you need to look at the legislation itself for the law.  The best place to look for legislation is one of the major UK databases (Westlaw or Lexis Library) as it will have the legislation as amended and as up to date as it can be.