London Law Tutor

Wednesday, 19 October 2016

Al-Saadoon judgment revives fundamental questions over the UK’s extra-territorial human rights obligations, the role of lawyers and the evolving nature of warfare

On 9 September 2016, the Court of Appeal delivered its judgment (see here) in the latest high profile case to deal with a number of serious allegations concerning the conduct of the British Armed Forces during the Iraq War. The case touched upon a number of contentious issues, but most importantly for this blog, the Court had to consider the reach of the United Kingdom’s international human rights obligations beyond British territory. Although the decision of the court slightly retreats from the far-reaching judgment of the High Court on this issue (see here), the case marks an interesting contribution nonetheless and is surely destined for further litigation. The judgment also raises a number of issues which have ramifications beyond the constraints of the particular case, most notably in relation to the role of human rights lawyers who have been heavily criticised by the Prime Minister in recent months, and the changing nature of warfare and counter-terrorist methods.

The case concerned numerous allegations of fatal shootings, ill-treatment, disappearances and complicity with the United States of America over allegations of torture. The key questions to come before the Court of Appeal focussed upon the now regularly confronted issue of the extra-territorial application of the European Convention on Human Rights (ECHR); the extent of the UK’s obligations under the ECHR to investigate allegations of torture and unlawful detention; and the applicability of the Convention Against Torture (CAT) in the English and Welsh legal system.

On the first issue, the Court of Appeal disagreed in part with the High Court, finding that the shooting of an individual who was not detained by the Armed Forces was not in itself sufficient to demonstrate control for the purposes of establishing jurisdiction, as Leggatt J had previously found. Although Leggatt J held that shooting someone represented the ultimate exercise of physical control over another human being’, the Court of Appeal held that it was for the European Court of Human Rights (ECtHR) to extend the principles espoused in the leading Banković and Al-Skeini cases, which require an element of physical power and control. For the Court of Appeal, killing someone who was not detained by the shooter clearly lacked the fundamental element of control. In light of the Al-Saadoon decisions in the British courts, a number of important fundamental issues persist.

Given the scale and frequency of British military interventions abroad in recent years, it is obvious that the domestic courts will have to regularly contend with serious allegations concerning the conduct of the British Armed Forces. This will require the domestic courts and the ECtHR to persistently grapple with the issue of extra-territoriality. As is well known, the ECtHR has responded to this issue in the numerous appeals arising out of the invasions of Afghanistan and Iraq in 2001 and 2003 respectively (see Al-Skeini, Al-Jedda, Jaloud, Al-Saadoon & Mufdhi). Moreover, the Iraq Historic Allegations Team (see here) will have its hands full for several years as it aims to conclude its investigation into allegations of abuse by 2019. 

However, lawyers acting on behalf of Iraqi civilians have faced much criticism for taking action against the British Armed Forces. In her closing speech at the recent Conservative Party conference, the Prime Minister, Theresa May, announced that in future conflicts the Government would not let ‘activist left-wing human rights lawyers harangue and harass the bravest of the brave’ in the British Army (see here). This followed an earlier and equally controversial policy announcement that the UK would derogate from certain human rights obligations in future conflicts (see here). Criticism of this announcement has been abundant as lawyers and academics have questioned how any such blanket derogation would satisfy the requirements for a derogation under Article 15 of the ECHR to be lawful, not least of all the principles of necessity and proportionality.

One of the leading law firms to challenge the Government in recent years and represent individuals who claim to have been mistreated during the Iraq War was Public Interest Lawyers, led by Phil Shiner. The firm was consistently lambasted by some politicians due to the frequency of allegedly vexatious allegations against British troops. Of course, whether a claim is vexatious or not should be a decision of a court and not a politician, but the issue of gathering sufficient evidence and deciding which claims should be advanced is a trickier question, especially if done so with taxpayer money. Nevertheless, the firm closed on 31 August 2016 after it lost legal aid funding amidst accusations of misconduct (see here).

A further issue raised once again in light of the Al-Saadoon judgment concerns the increasingly complex nature of contemporary warfare and counter-terrorism in which the United Kingdom participates. In particular, many of the key legal notions underpinning international humanitarian law and international human rights law have been grossly politicised in recent years and are subject to differing interpretations. Equally, these challenges will intensify given the particularly murky nature of British involvement in some conflicts, most notably in Yemen (see here and here). As atypical methods of warfare and counter-terrorism (i.e. through proxy or targeted killing) supersede traditional battlefield deployment and criminal justice processes, the courts will have to apply the principle of jurisdiction to the changing nature of conflict and counter-terrorism.

In light of these issues, the implications of these judgments are extremely concerning. If, as the Court of Appeal contended, an element of ‘physical power and control’ over the individual was indeed necessary to establish jurisdiction, then it would be impossible to establish jurisdiction when a State killed an individual by means of a drone strike. Equally, when one considers the nature of proxy warfare which inherently avoids the use of any ‘physical control’ over individuals, then establishing jurisdiction for the purposes of Article 1 of the ECHR becomes an impossible task.

In that regard, it is deeply troubling if States are able to avoid having to consider their obligations under international human rights law if they deliberately conduct themselves in a way which does not involve their personnel exercising territorial control, or physical control over individuals. Such a legal position only serves to incentivise proxy warfare and targeted killings. Equally, as David Hart has argued, ‘it may be said that a sniper picking off a civilian at 1km would be non-justiciable, whereas soldiers cornering a group of civilians up an alley-way before swiftly despatching them would arguably give rise to a justiciable killing’ (see here). Indeed, the increasingly complex and evolving nature of warfare and counter-terrorism may necessitate the involvement of ‘activist left-wing human rights lawyers’ more than ever if the law is in a state of uncertainty and needs clarification.

Even so, the Al-Saadoon judgment further reinforces the need for the British Government to implement the recommendations made in the Report of the Baha Mousa Inquiry in a transparent manner in order to learn from the mistakes of the past. The public must have confidence that allegations of unlawful killings and abuse are taken seriously and that steps are actively taken to prevent them re-occurring. Taking aim at human rights lawyers at every opportunity does not serve the interests of democracy or, more importantly, the rule of law, which requires that the Government is scrutinised and held to account if necessary. Additionally, the British Government must take heed of the High Court’s recommendation in Ali Zaka Mousa, and commit to establishing an ‘inquisitorial inquiry derived from the model used by coroners’ to investigate allegations of abuse by Iraqi civilians by UK armed forces. According to the High Court, this method inquiry would be better placed to ‘assess the systemic issues and to take account of lessons learnt is discharged in a way that provides greater transparency and public accountability’.


Although the Court of Appeal in Al-Saadoon overturned arguably the most interesting and certainly the most far-reaching aspect of the High Court judgment, the suggestion that any use of lethal force by the Armed Forces (regardless of physical control) invokes jurisdiction should be seriously considered again in the future. This is particularly vital in light of the changing nature of warfare and the use of targeted killing. If the Al-Saadoon appeal progresses to the Supreme Court and the European Court of Human Rights, as commentators believe, then the higher courts will have to reconcile the judgments.

The writer, Ben Stanford, is an academic based in London, with a keen interest in International Human Rights and International Criminal Law. Previously, he has completed a Masters in International Criminal Law at the University of Amsterdam.  He is currently pursuing a PhD in Terrorism and International Human Rights.

Monday, 25 July 2016

Brexit: Legal Implications for the United Kingdom?


On 23rd June 2016, Britain voted to leave the UK. A mass of outcry, demands for a second vote and memes declaring the end of the world went viral. Youngsters declared that their futures were in jeopardy and the economy was to be shredded to tatters. On the other hand, those who voted for Brexit claimed the leave would claim back our border control and the economy would soon stabilize. The above remains to be seen, but what are the legal implications of Brexit?

Immigration Law

Free movement of people is one of the main principles of EU law. Following the leave in 2018, citizens in the UK will no longer have the right to move and reside in the EU unless permanent status has already been granted to them. However it is likely that immigration will form a key part of ‘post Brexit negotiations’ and it is therefore unlikely that steps will be taken immediately to dimish EU nationals free movement rights. With this in mind, it remains unclear to which extent Brexit will effect nationals who have already exercised their free moment rights and negotiations are likely to be advantageous for citizens who have already moved.

Employment Law

The EU has created protection for those in employment in areas such as unlawful discrimination and family dependant rights. Anti Brexit voters have expressed concern for the potential decrease in protection for employees, namely the loss of the above rights. However it is noteworthy that many benefits for employee’s are outside the scope of the EU and are therefore unlikely to change, such as the national minimum wage and the London Living Wage. It is further noted that the UK is considered far above the standard of other member states in the protection it offers for employees being in excess of the minimum EU requirements.

Following Brexit, the UK may seek to negotiate a bespoke relationship with the EU, if this is achieved, the UK will have the right to amend and repeal legislation and the potential changes could be as significant as the state wishes. So far there is no indication of this happening either way, it seems we must wait until negotiations are complete to fully understand the post Brexit implications.   

Competition Law

Interestingly enough, the primary legislation for competition law will still be in force long after the Brexit leave. Articles 101 and 102 will remain the central focus, thus, global cartels will still face investigation by the European Commission, this legislation will continue to apply to post-Brexit agreements. This structure is not entirely different from other countries outside of the EU; US and Asian businesses are also subject to the rules of EU competition law, in so far as the agreement will impact the EU market.


So what will change? Whilst the primary legislation will continue to apply, the commission’s powers will be limited. For example, the commission will no longer have the right to conduct on-site inspections nor can they force the UK to do this themselves. In this sense, it is the way in which competition law will be carried out which will change, rather than the central principles. It has been made clear that EU case law will remain influential. So to answer the question - what will change? As usual, it remains to be seen, however it looks incredibly likely that not much will change at all in the near future.

The writer is a lawyer based in London, with a keen interest in Company, Employment and Immigration law. Previously, he has completed two Masters in Law at the University of Sussex and University College London.  He has recently completed the Bar Professional Training Course and and can be reached at: jay@londonlawtutor.com

Wednesday, 10 February 2016

Educate Earth - Empowering Lives

The idea of Educate Earth was initially conceived in the winter of 2014, and by the end of 2015 we were able to establish what was once merely an idea. Educate Earth originated from the realisation that if one has had a privileged life than that is all the more reason to help those who are less fortunate. It is this realisation, coupled with the educational platform our trustees possess, that led to the desire for establishing Educate Earth. Our aim is to provide financial assistance to students globally; based on academic potential and financial circumstances. We firmly believe that if we can help educate even one person from a low-income family then this person can lift the quality of life of their whole family in addition to benefitting their whole community. In a world of Internet, television and access to free education where information is at our fingertips, we are prone to take education for granted. Sadly, many do not have this luxury. For the less fortunate, education can provide the shoes to walk out of poverty and the harness to conquer the obstacles between them and a better way of life. In many third world countries where quality education is the need of the hour and where it would arguably provide the greatest benefits it is treated as a commodity that is out of reach for those in it's pursuit.

Educate Earth is founded by the team behind London Law Tutor (LLT), a company that prides itself on delivering world-class private education globally. It is now our time to give back. As LLT pledges 3% of its revenue to helping those in need by providing academic scholarships that bridge the gap between those with potential and the tools to realise that potential, we invite you to join us in doing the same. The smallest pledge as a token of the appreciation for the education you have been blessed with can over time transform the lives of individuals and their families for the better. The gift of education stands behind the Chinese proverb that distinguishes between giving a man a fish and teaching him how to fish; join us in empowering lives.

Friday, 1 January 2016

London Law Tutor launches London Tutors in 2016!



Happy New Year from us at London Law Tutor. As LLT enters its fourth year, we are pleased to introduce London Tutors, a world-class tutoring service for all ages and all academic levels of study. May this year bring you success, good health, wealth and the utmost happiness. Here's to 2016, with passion and a little support from us, it could be the one that makes you.



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Wednesday, 21 January 2015

Jurisprudence & Legal Theory - A Marxist Reflection

The work of Karl Marx has been a valuable asset to jurisprudence and more importantly; to the overall development of the law. It has been re-interpreted by the likes of Evgeny Pashukanis and the french jurist, Louis Althusser. Karl Marx observed in his writings in 'Das Capital' that our position in society is determined economically 'economic determinism'. The material conditions of life as affected by those social factors where a ruling class whom he called the 'bourgeoise' own the means of production. According to Marx, these property relations form the base which is supported by the superstructure such as law, education and religion which are subsequently used to provide for the exploitation of the working class, whom he called the 'proletariats'. 

Critics have pointed out that this is a very cynical and naive view of society and how dialectical materialism affects class struggles. So where does the law and the science of law (jurisprudence) come in? Prima facie the law provides the working class with rights but Marxism questions this as only providing a 'false consciousness', as Louis Althusser interprets Marx and differentiates between the ideological state apparatus & the repressive state apparatus. The ideological state apparatus includes institutions like law, education and religion which are used as coercive tools by the ruling class to further their own interests. Furthermore, the print and electronic media is used to impose the ideology of the ruling class on the exploited working class. For example, in the United States, the media was used to get the masses to support and justify the invasion of Iraq even though no weapons of mass destruction have ever been found there to this today. The US Government kept on increasing the threat levels of attacks frequently in order to provide people 'a false consciousness' by instilling fear in them. These tactics led to mind manipulation at such a scale and the common citizens in the western world consented to the invasion of Iraq which has led to further bloodshed that continues to exacerbate to this day. The perpetrators of 9/11 who should have been treated as criminals then became holy warriors for those who were uneducated and vulnerable to manipulation. This is interesting because the work of Karl Marx as re-interpreted by Althusser allows us to think outside the box and really challenge our perception of reality. 

The case of Haliburton corporation is curious because it's former Chief Executive, ex Vice President of the United States, Mr Dick Cheney awarded many contracts from logistics to oil on behalf of the US Military to Haliburton, making billions of dollars in profits from the war. Clearly something seems wrong here & Althusser then goes on to talk about the repressive state apparatus being used to curb the dialectics which are the clash of ideologies from within the state. Here the military, police and other law enforcement agencies are used to repress new ideologies by those who are objecting to the ideologies being imposed by the ruling elite. The Arab Springs in Libya, Egypt and Syria are cases in point that show similar trends. 

Certainly it can be argued from the perspective of corporate law that the doctrine of corporate social responsibility has only recently emerged as an area of study. To quote Charles Dickens, "It was the best of times, it was the worst of times" would in this context mean that throughout the 1970's and onwards, it has been in the interest of multi-national western corporations to keep people in poverty across the globe so cheap labour can be exploited in developing countries like Pakistan, India, China, Thailand and Malaysia etc. For example, Levis-Strauss has all of it's factories off-shore. Here the re-interpretation of Marx by Pashukanis is also significant where he talks about the trade in commodities as not the only thing that affects the material conditions of life but also providing services for things that require highly-skilled workers in the contemporary context. 

In the book, Corporate Planet, Joshua Karliner makes an intriguing point that sometimes multi-national corporations want military dictators to stay in power. He cites Uganda as an example. This is because military policing leads to less workers demanding their rights & thus higher profit margins for the corporations which results in further exploitation of the masses. Since the rise of legal positivism from the times of the renaissance it is clear that a common thread runs through the theories of John Austin, HLA Hart and Hans Kelsen which relate law to power. This coercive element shows us that in light of Marxism the law can certainly be seen as a 'weapon of domination' by the ruling class. In fact sociological studies have shown that although the law equally applies to all in theory but in practice mechanisms have been introduced to further the interests of the rich and powerful. For example, when a poor person commits a crime he/she is provided legal aid by the state in developed legal systems. However, more often than not, the legal aid representative advises the defendant to enter a plea bargain with the state prosecution but when a rich person commits the same crime he/she is allowed to post bail and of course hire adequate legal representation. To conclude on a rather positive note, in the 14th century there was no legislation on the length of the working hours in a day but slowly as social awareness spread through the course of the 18th and 19th centuries, the Factories Act(s) started to regulate this area to prevent exploitation of the working class. 

           
The writer is a lawyer based in London, with a keen interest in Corporate, Finance and International law. Previously, he has completed a Masters in Corporate Law at University College London.  He is currently empowering the inquisitive legal minds of law students globally with world-class cutting-edge legal skills and can be reached at: usmanmalik@londonlawtutor.com
 




   

Friday, 17 October 2014

London's Global Law Tutors in Academic Year 2014-15!

London Law Tutor is an idea whose time has come because of the sheer resilience and relentless dedication to our corporate values of academic and professional excellence. Our global vision for legal education combined with the unmatched talent of our academic experts is second to none. The team at London Law Tutor continues to empower the global legal community with world-class legal knowledge and skills. Our commitment to provide clients legal knowledge free of charge continues since we have recently uploaded law lectures on Legal Aspects of International Finance, BPTC Criminal Litigation Identification Warnings and Becoming a Lawyer: Solicitor or Barrister? on our YouTube Channel

Tuesday, 8 July 2014

Revival of Salomon in Tortious Liability

One begins to wonder if the Court in the case of Salomon v Salomon [1897] A.C.22 ever envisaged that a principle derived from the case law in 1897 was continue to be litigated with such furore in 2014. The principle in Salomon sought to keep companies as separate legal entities which personalities that are distinct from their owners and controllers. The advantage here being that companies would not be liable for the debts of their shareholders and management and, in the reverse, shareholders and management would not be liable for the debts of the company.

The advantages of the separate entity principle is worthy of an article in itself. The long and the short of it being that by limiting the liability of shareholders company law is able to encourage entrepreneurship amongst those otherwise wary of the dangers associated with a failed venture; thus those without deep pockets but with deep ideas and skills have been able to trade and ensure their risk is limited.

However, a number of cases have worked to try and limit the principle in Salomon and thus allow shareholders and the management of the company to be liable for the debts and liabilities of the company; this principle has become known as “lifting the corporate veil”, amongst other names. However, in the interests of commercial certainty and preserving the limited liability and separate entity principle, Lord Sumption of the Supreme Court, in the case of Prest v Petrodel [2013] UKSC 34 has made it clear that the veil should not be lifted save for in exceptional circumstances. Thus, the Supreme Court has severely limited the case law relating to the lifting of the corporate veil.

The Court of Appeal has again spoken in the case of David Thompson v The Renwick Group plc [2014] EWCA Civ 635 by overturning a first instance decision which had held that a company was liable to its employee for the injuries and harm that came across as a result of the exposure to asbestos; the Court of Appeal was asked to consider whether the Defendant company, who owned two now defunct subsidiaries with whom the Claimant was employed, owed a duty of care to the Claimant. In holding that it did not, the Court of Appeal considered whether a parent company can have assumed a duty of care as to the health and safety of its employee by virtue of the fact that it had appointed one of its directors to concern themselves with the health and safety of the employees of the subsidiary companies. The Court of Appeal, in finding an answer in the negative, held that the director’s duty was limited to a duty to the company ad not to its employees and, thus, the parent company did not owe a duty f care to the employees of the subsidiary. In citing the case of Chandler v Cape plc [2012] EWCA 525, where, on the particular facts, the company was found to be liable, the Court of Appeal held that the factual differences were such as to not find the company liable in this instance.


This case allows multinationals and businessmen to breathe a sigh of relief following the case of Chandler where the concern was that the decision would expose (with no intended pun) multinational companies to litigation risks associated with asbestos cases.

The writer is a lawyer based in London, with a keen interest in Company, Employment and Immigration law. Previously, he has completed two Masters in Law at the University of Sussex and University College London.  He is currently pursing his third postgraduate legal qualification, undergoing training at BPP Law School in London on the Bar Professional Training Course and can be reached at: jay@londonlawtutor.com