Diversity in the Workforce - Sushi Rolls not Gender Roles Are law firms really promoting diversity and inclusivity in the workforce to minority groups?

Diversity is defined by the Chartered Institute of Personnel and Development (CIPD) as, “where difference is recognised and emphasised, but not actively leveraged to drive organisational success. There is acknowledgement of the benefit of having a range of perspectives in decision-making and the workforce being representative of the organisation’s customers”. Diversity includes both visible and non-visible factors such as ethnicity, financial background, gender, and sexual orientation. The question that remains is whether firms truly embrace diversity in the workplace. Although there are measures in place to try and tackle the ever-present lack of diversity in the realm of legal practice, there seems to be little to no change in the current diversity of firms in terms of ethnicity, financial background, gender, and sexual orientation.  Now, the question posed is if this is due to an ineffectiveness on the terms of current diversity promotional programs or if the problems lie rooted in the culture surrounding our society.

There are several promotional diversity programs in place at various firms. In addition to this it seems that universities are also following suit by creating schemes. The University of Bristol Law Club has introduced a fee waiver scheme that is designed  to promote diversity by waiving the membership fee for the society.  The waiver is meant to help those that come from a low-income background. The university also supports and promotes the Freshfields Stephen Lawrence Scholarship Scheme, a programme which supports men from African, Caribbean, mixed-African, or mixed-Caribbean heritage to gain employment in the City. Firms such as Herbert Smith Freehills, a leading firm in diversity, have established projects like the Inclusivity Group that promotes and implements different diversity initiatives. Another example is the PRIME program, the main goal is to improve access to the legal profession through work experience for those from disadvantaged backgrounds. Although there seems to be an increase in these types of programmes, statistics have not yielded progressive results or trends in terms of increased diversity. According to a published report by The Solicitors Regulation Authority, although nearly 18% of solicitors in the profession are from a Black, Asian or Minority Ethnic (BAME) background, they make up only 6% of partners. Similarly, 97% of all lawyers identify as heterosexual, yet it is estimated by Stonewall that 5-7% of the entire population are lesbian, gay or bisexual. Additionally, women make up almost half of all solicitors across the profession, but they represent less than one third of partners. These shocking statistics pose a very important question, do promotional diversity programs get tangible results? It appears that the answer is that the existence of such programs isn’t enough to create diversity in the workplace.

Another important factor to consider when analyzing data about diversity is the sensitivity of some topics, a key example being sexuality. Optimistically speaking, modern day society is a world where we preach inclusivity, many places in the world are a lot more progressive than they were 20 or 50 years ago. Although this may arguably be the case, such topics as sexual orientation are very much taboo when in practice. Would one want to disclose information that could potentially harm their career aspirations or success? For example, Stonewall reported that 25% of lesbian, gay and bi workers are not  open to colleagues about their sexual orientation. This may in part be due to a real fear of rejection by colleagues or family. Gay in Britain reported that 42% of trans people are not living permanently in their preferred gender role. Respondents stated they are prevented from doing so because they fear it might threaten their employment status. Therefore, it is with great scepticism that people must view not just data regarding diversity but also the way society functions as a whole. Society cannot be and will never have the same views. One person’s kryptonite is bound to be another person’s greatest asset. Applying this way of thinking to law firms and diversity, one has to look at the entire scheme surrounding firms from the point of view of those that come from diverse backgrounds that aren’t seen as “conventional.” Although there are these programs in place that promote diversity, it is reflected in statistical evidence that they do not work. Is this because of the mindset of society itself? In my opinion, these programs seem to contract contradictory results as to what their goals seem to reflect and are ineffective as shown through the statistical numbers. Ultimately, even if one tries to argue that it is because of society itself, it doesn’t change the fact that these programs aren’t doing their job. These programs are meant to promote diversity whether it be in an environment of a society that purpotes those same values. As the British Psychoanalytic Council states, “Our society today is multi-cultural in every sense, and it is an on-going challenge for all of us to learn how to live harmoniously and with understanding with all of our neighbours”.

Before concluding this argument of diversity in law firms I would like to address a very popular antipodal side of thinking that many preachers against diversity in the workforce like to use. Part of the culture surrounding our society is the belief that hard work will result in better payout/results. This belief fuels one of the main arguments against diversity in the workforce. People tend to argue that things such as hiring practices should be merit-based rather than based on creating a more inclusive and representative workforce. While at first glance merit-based hiring practices appear to be a sound and logical idea, there is evidence to the contrary. For example, statistical studies by McKinsey & Co. support the ideology that a more diverse workforce produces better results. One particular study showed that companies with top quartile diversity (defined as women and foreign nationals) on their executive boards generated ROE (returns on equity) that were 53% higher, on average, than companies in the bottom diversity quartile. Similarly, Emilio Castilla of MIT and Stephen Benard of Indiana University’s study, “The Paradox of Meritocracy in Organizations” illustrates how the ideology of meritocracy results in the unfair treatment of women in the workforce. This is particularly evident when an organisation is meritocratic. Individuals in managerial positions favour a male employee over an equally qualified female employee by awarding him a larger monetary reward. It is studies such as these that seem to debunk the stereotypical argument of merit-based hiring over diversity hiring.

In conclusion, it is nearly impossible to determine whether the fault lies with diversity programs instituted by law firms and universities or if it is exclusively a deep-rooted societal issue. Some may even argue that it is a mixture of the two issues at play that stem the diversity issues that are ever present in law firms today. Although things may seem bleak it is up to every person to help promote diversity. You may say that one person’s thoughts and opinions hold no power but, it is the impact that one person has on others and the domino effect that transpires. Change is a slow process. But, as George R. R. Martin said, “Different roads sometimes lead to the same castle”. It is important that we pave a pathway for future generations to realise the strengths in the difference of these roads and to be respectful of one another’s differences. With the right thinking and initiatives, not just firms but the world will hopefully be a better place because in the end, what do we all have in common? We’re human.

Article written by Matthew Lu (1st year, LLB Law), in conjunction with Dicta 2018.

Ten Essay Tips: Bristol Law Review

Is data protection fit for the ‘big data’ era?

The recent EU’s General Data Protection Regulation (approved in 2017 and applicable from 2018) builds on a 20-year-old regime, the 1995 European Directive, that was implemented in UK by the 1998 Data Protection Act. It regulates the processing of personal data through restrictions on how such data – including social media data – can be recorded, stored, altered, used or disclosed. Under the DPA, personal data means data related to a living individual who can be identified, either directly or indirectly, from the data, or from other information held by the same organisation. The updating of the Regulation was needed because of the fast developments in technology, and the appearance of new legal and ethical issues in different fields.

For example, under its new terms of service, Google can significantly influence an election by predicting messages that would engage an individual voter (positively or negatively) and then filtering content to influence that user’s vote. The predictions can be highly accurate, making use of a user’s e–mail in their Google provided Gmail account, their search history, their Google+ updates and social network connections, and their online purchasing history through Google Wallet, as well as data in their photograph collection. The filtering of information could include “recommended” videos in YouTube; videos selectively chosen to highlight where one political party agrees with the user’s views and where another disagrees with them. In Google News, articles could be given higher or lower visibility to help steer voters into making “the right choice”. Such services can not only be sold, but could be used by companies themselves to block the election of officials whose agenda runs contrary to their interests. In the case of Facebook, we have to remember that the company confirmed that it sold more than $100,000 worth of political ads to Russian sources trying to sway last fall’s U.S. presidential election and leaked reports showed that Facebook was giving advertisers the option to target users using keywords like “Jew hater”. The company now stated that it will invest more in machine learning to “better understand when to flag and take down ads,” and expand its advertising content policies to stop ads that use even “subtle expressions of violence”. These tactics had already been tested by Russia through major acts of cyber-enabled information warfare against a rival state as Estonia. According to analysts, certain patterns have emerged from these conflicts, allowing experts to draft a rough model of the techniques Russia uses to destabilize its opponents: “First, people’s trust in one another is broken down. Then comes fear, followed by hatred, and finally, at some point, shots are fired”. The pattern was particularly striking in Crimea. People posted reports on Facebook about gross mistreatment by Ukrainians; dramatic messages circulated on Instagram about streams of refugees fleeing the country. Billboards suddenly appeared in Kiev bearing pro-Russian slogans; demonstrations followed. Rising suspicion and mutual mistrust split Ukrainian society. In a matter of months, fighting broke out. Russia used the conflict as a pretext to send in “aid convoys,” presenting itself as a benevolent responder in an emergency.

The core of regulation is and should be the existence of consent. Under the DPA, individuals must give their consent for their personal data to be processed by an organisation, both at the stage of initial registration for a social media service, and for any subsequent changes to the terms of use of the data. Since the EU’s new GDPR, this consent needs to be expressed and not only assumed. There are, however, further worries. The new European legislation has built upon the right of users towards withdrawal of consent (or ‘right to be forgotten’). This right does little to allow users control over their personal information: it merely grants users a right to end the agreement into which they entered upon joining the social network. Users’ information is removed, at the price of being unable to continue using the social networking service. Furthermore, with social networking websites offering authorisation services to independent sites, a “forgotten” user loses the ability to access these third-party sites with the possibility of yet more personal information on the third-party sites becoming orphaned in the process. In this sense, some defend the idea of more fine-grained controls, stating that allowing users to remove specific pieces or clusters of personal information, without affecting their ability to use social networking is essential if users are to be given genuine control over their personal data.

The GDPR has improved the on-boarding process of consent-giving, but hasn’t paid the same attention to the off-boarding side of things. Maybe regulators don’t realize the dimension of how much integrated our lives have become with technology, and how private companies must assume a bigger responsibility in order to guarantee a democratic society.

Article written by Andrew Macsad.

Gig economy: flexibility at what cost?

In Pimlico Plumbers v Gary Smith [2017], the court grappled with the murky body of employment that is the gig economy; an economy built upon ‘independent contractors’ who lack entitlement to basic workers’ rights. Gary Smith won this legal battle, yet the troubling questions shed light on exploitation.

Perhaps best defined as a “labour market characterised by short term contracts,” the gig economy takes the form of app-based businesses such as Deliveroo or Uber. Currently in Britain, 1.3 million workers are employed within this market. The competitive nature of this economy promotes a climate that encourages low-paid flexible work; Deliveroo’s dramatic “600% growth in 2016” is only possible due to this flexible model.

Its popularity is undeniable. The flexibility it provides is appealing to the increasingly self-employed workforce; it offers an empowering and refreshing change to the traditional 9-5 and caters for the modern worker, typically the student. 85% of Uber drivers said they work in the gig economy “to have more flexibility in [their] schedule and balance [their] work with [their] life and family.” Additionally, numerous studies show a remarkable link between wellbeing and the option to ‘take an hour or two off during working hours to take care of personal or family matters’.

However, problems occur alongside classification as an independent contractor. This branding provides for Britain’s “vulnerable human underbelly.” One worker noted that “I am treated as an employee – in fact, worse – but with no holiday or sick pay, no security and no pension.” This use of self-employment treats contractors and employees alike, yet deprives them of protection. Contentions are fueled by a lack of rights against unfair dismissal, redundancy and minimum wage. The plunge into financial insecurity and uncertainty concocts an “absolute recipe for a stress-related illness.”

Flexibility in itself is also questionable as it is determined on when the company needs you, with often unsuitable hours, leading one commentator to note that flexibility “is not a benefit of working for Uber; that is a benefit of working for a good company.” Moreover, a lack of restrictions on usage distorts this flexibility to dangerous levels. Common sense dictates that multiple jobs and senselessly long hours will create unnecessary accidents from tiredness and lapses in concentration. Is the risk worth the reward?

Fundamentally, in an attempt to curtail costs, employers have been become predatory. Basic rights are warranted and this has to an extent been proven in the courts; Uber drivers in the UK won the right to be classed as workers, entitling them “to holiday pay, paid rest breaks and the national minimum wage.” Moreover, The Taylor Review on modern employment practices focuses on tackling exploitation primarily though labelling these workers as 'dependent contractors' so that they can receive more employment rights. It seems these abusive practices are increasingly outdated and parliament in coalition with the judiciary are slowly recognizing and safeguarding the gig economy worker.

By Concobhar Jolliffe-Grimes (2nd Year LLB)

Inside a Fintech Start Up

Get to your job on time. 9am sharp. Leave work at 6pm. Those are standard office hours. That is the impression I had about the demanding and stressful working environment in Hong Kong. I travelled from Bristol back to Hong Kong in anticipation of a summer filled with standard internships at law firms. Little did I know, I would find myself immersed in a dynamic environment, in the form of a fintech startup.

During the summer of 2017, I undertook a three-week internship at FinFabrik. I stumbled upon this internship opportunity by chance. People have told me that LinkedIn is a platform for professionals to connect and network, but it is also a place where they have been offered internships and vacation schemes before. I never really believed that. Until the day FinFabrik reached out to me via LinkedIn.

Lacking prior exposure to the fintech industry, I didn’t know what to expect at the interview. So I did research on FinFabrik and read fintech news in preparation for the interview. It turned out to be different from what I expected; it was more of a casual chat where I got to know more about FinFabrik and vice versa.

A few days later, I was informed that I got the internship. With the impression I had about Hong Kong’s demanding and stressful working environment looming over me, I asked the obvious question: “what time do I need to be in the office and what time do I go home?” I was caught off guard when it became apparent that there were no standard office hours. No 9am sharp. No leaving work at 6pm.

At FinFabrik I was given a plethora of flexibility, which made the internship a unique experience for me. The team firmly believes that as long as the work you deliver is of high quality, then it doesn’t matter how many hours you spend in the office. This is the first of many lessons that I have learnt through this internship.

The quality of your work is not dictated by the length of time you spend on it.

Appreciation and growth. Those are two things that I have taken home with me after this internship. These three weeks have aided me in growing as a person in multiple aspects. At FinFabrik, interns are treated as equals, rather than the bottom of the hierarchy; all our work is appreciated and valued. It is particularly rewarding to witness the impact our work has on the company. The team has a lot of trust in all interns and encourages us to push ourselves beyond the knowledge we have gained at university.

Don’t underestimate yourself. Your abilities are not defined by the level of knowledge you acquired at university.

Not only was I able to apply legal knowledge from my LLB degree, there were also ample opportunities for me to expose myself to areas of Law that are beyond my scope of studies. For instance, I was able to draw upon the theories of Contract Law to draft an agreement for the company. I even ventured into Intellectual Property Law — an area that I have never explored.

The tightly knit team spirit and supportive attitude are both paramount features of FinFabrik.

The atmosphere at FinFabrik is a stark contrast with the traditionally uptight and tense offices that have colonised Hong Kong. Flexibility is something to be celebrated and valued, especially in a place like Hong Kong. If you want a taste of working at a place that doesn’t fit in as a stereotypical office job, then FinFabrik is the place to try out. The internship has undoubtedly managed to tilt the impression I had about the demanding and stressful working environment of Hong Kong.

From the charcoal-biscuit-obsessed-CEO, to the super-stylish-COO, to the young UX designer, the FinFabrik team consists some of the most impressive, driven and determined individuals I have ever encountered. Thank you FinFabrik for these memorable three weeks.

Written by Chloe Deng. A second-year Law student. 

Fintech

Tomorrow's world today. 

Fintech – or financial technology – refers to the use of technology to deliver financial services. This piece concerns the development of Fintech over the last decade and the regulatory measures governing it.

Alongside many innovative processes with applications to the commercial world, lies the ‘block-chain’. Start-ups, in their application of ‘block-chain’ technology to distributed ledger structures, have attracted work and investments from financial institutions and companies. They also currently compete with these traditional players to some extent in the payments market, where significant inroads appear to have been made as more companies choose to trade in alternative currencies like Bitcoin.

Block-chains work on a network like the Internet and are built on a hash which encrypts the information generated by a transaction. This hash is stored in a “block-header”. The first computer which successfully completes this hashing is financially rewarded. The same process takes place for subsequent transactions, and the block-header that results from this new transaction is then “chained” to the previous block-header, by incorporating information from the previous block-header into the subsequent one. The chaining of such block-headers creates a ledger distributed across the network, where the exchange of assets is recorded securely.

Hence, a critical issue concerning block-chain technology is security. This is especially so in a permission-less model (there are three models currently – this, the electronic central ledger that works like a normal central bank and the permissioned model). Anyone who has a computer can access this block-chain. Hence, the more people with access to the network, the higher the risk of malware transmission. If malware successfully breaches the encryption of data, data is no longer secure, compromising an important advantage of block-chains.

A balance, however, must be struck; excessive regulation regarding data security may limit the potential wide-spread application of block-chains. Rules such as the EU’s General Data Protection Regulation may interfere with the application of block-chains to multi-jurisdictional payment systems or even data-transfer, restricting the potential of block-chains to foster an integrated and globalized transactional system.

On the other hand, regulations governing the sharing of customer information, such as the EU Payment Services Directives, may be detrimental to the adoption of block-chains as information sharing may negate the advantages of a data-encrypted system, defeating the purpose of using block-chains as earlier mentioned.

It must be noted that regulation in the UK by the Financial Conduct Authority has been generally friendly to Fintech companies. Notably, the ‘sandbox’ scheme of the FCA’s Project Innovate allows companies to test products with temporary approval from the FCA. This is a scheme that has also been introduced or proposed in countries like Australia and Singapore. Ultimately, the aim is not to restrict financial technology, but to create a healthy regulatory environment that fosters innovation.

Essentially, regulation in the UK and other parts of the world purport to foster Fintech development, rather than limit it. Therefore, it appears then that the legal landscape surrounding it is generally well-adapted in response to this breath of fresh air that is Fintech.

This article was written by Wee Toh Loo (1st year, LLB Law), in conjunction with Dicta 2017.

Democracy Inaction

What does the High Court upset mean for the future of democracy in our land? 

On November 3rd the High Court ruled that the government could not leave the EU without statutory permission from Parliament. The UK entered the EU with the European Communities Act 1972, so the government needed to find the authority to overrule an Act of Parliament. Their argument that the Parliament of 1972 intended to confer that authority on them was not founded in any textual evidence within the aforementioned Act, the court found. This led to the decision that only a new Act from Parliament could allow the government to take the UK out of the EU, and that the royal prerogative of the government was not sufficient. This is sure to have significant effects on the health of UK democracy, and not in the way you might think.

Many, peculiarly, see this as an affront to the will of the people. It is argued that Parliamentary involvement, presumably to give democratic authority to the process, is made redundant by the sole weight of the referendum result. Some even go so far as to suggest that Parliament could harm the democratic mandate already given by drawing out an almost-certainly arduous process needlessly. An even more dangerous consideration is the ability of MPs to block Brexit. After all, 479 MPs backed Remain, to Leave’s paltry 158, so a Commons vote on leaving the European Union, even considering the potential political fallout of a Remain vote, is going to be a tense affair. The disparity between the views of the MPs and the views of the United Kingdom is a dangerous presence on this issue.

It is upsetting, then, that this acceptance of the unappetising risk of a blocked Brexit is a legal necessity. Whatever the practical implications of Parliamentary involvement, the voice of our supreme lawmaking authority must be heard. The Crown’s argument in this case, that the intention of the 1972 Parliament was to give the government the requisite authority, was an unconvincing argument dismissed by the judges as lacking meaningful evidence. The UK can only leave the EU if the European Communities Act is repealed, and that can only be done by Parliament. The law is clear.

Though I agree with the decision of the court, I cannot help but be possessed by a number of concerns. That our MPs now have the power to override our decision to leave the EU worries me, though only about as much as the idea of actually leaving the EU. That our model of democracy in the UK allows us only a yes or no answer to an intensely complex issue, with no further say on a decision that is sure to substantially alter our lives. That I can see no positive, or even neutral outcome to the current predicament. Either Parliament votes to block Brexit, a direct violation of the democratic order issued by the people of the UK, or it decides to give the government all the authority it needs, and with it the ability to force an unwanted and harmful ‘hard Brexit’, or it decides to give the government authority subject to further parliamentary approval, which is likely to turn inevitably protracted negotiations into impossible ones. I see no happy ending.

This Article was written by Andy Hodgson (2nd year, LLB Law), in conjunction with Dicta 2017.

Electronic Surveillance

Who is watching you?

In Reddit’s 2014 transparency report, buried in the tables of data, was a paragraph that specified that the site had “never received a National Security Letter, an order under the Foreign Intelligence Surveillance Act, or any other classified request for user information.”. The following year, Reddit user 'sylf' noticed it was, curiously, absent. It was a sobering reminder to us that nothing, not even our memes and cat GIFs, were protected.

These ‘Warrant canary’ systems, like the extra paragraph present in Reddit’s transparency notice, notify users when a service provider has received a secret ‘national security letter’ requesting private user data. Named for the use of the brightly colored bird by coal miners to alert them to the presence of toxic gases in mine shafts, tech companies employ this crude method to work around the gag orders that often comes with said letters, preventing companies legally from speaking about the request. Upon receiving a letter request, the canary would be deleted, or ‘killed’, to alert users. Other companies that have also ‘killed’ their canaries since implementing them include Tumblr, Google, and Apple.

Most would be familiar with the Snowden scandal, when the intelligence agent exposed the existence of mass surveillance programs operating by intelligence agencies in Australia, New Zealand, Canada, the US and the UK. These programs, such as PRISM, run by the NSA, and TEMPORA, by GCHQ, empowered the bulk collection and analysis of phone records, emails, and web browsing data. Despite their supposed objective of investigating terrorism and criminal activity, these programs provided near unlimited access to sensitive private data, with limitations so generally worded as to be purposefully irrelevant. Snowden personally mentioned the ‘daily’ passing of nudes amongst the analysts as a ‘fringe benefits’ of working in the NSA’s program. In the wake of the scandal came calls for greater internet transparency and the curtailing of government authority in conducting surveillance.

And yet, 3 years later, the outcome of this discourse looks bleaker than ever. In the US, as highlighted by Reddit, the transparency movement has failed to deter intelligence agencies from secretively procuring sensitive private data without court approval, or notice to the users. It gets worse here in the UK, with the Investigative Powers Act 2016 receiving royal assent on the 26th of November last year. This Act codifies and streamlines existing surveillance laws and programs into law. These powers include the bugging of phones and computers, the legal obligation upon service providers to assist relevant authorities in bypassing encryption, recording by service providers of phone and internet logs for up to 12 months for use by law enforcement and other public agencies. So, rather than moving towards extinguishing existing illegal surveillance programs, lawmakers have, instead, moved to formally legalize them.

Without persistent public pressure, it seems an unfortunate reality that the outcry for a more secure private life has been mostly disregarded. I feel that there’s been an irreconcilable compromise to our rights to ‘privacy’ when authorities are empowered to rifle through our lives like binders on a shelf. One may only hope down the road that another expose like Snowden’s will result in more effective changes.

This Article was written by Samuel Goh Kean Hau (1st year, LLB Law), in conjunction with Dicta 2017. 

Permissibility of Torture

Taking Apart the Ticking Time Bomb Scenario

Introduced in Jean Lartéguy’s novel Les Centurions in the 1960s, the ticking time bomb scenario is a thought experiment exploring whether torture can ever be justified. The scenario can be formulated as follows:

Suppose that a person with knowledge of an imminent terrorist attack that will kill many people is in the hands of the authorities and that he will disclose the information needed to prevent the attack only if he is tortured. Should he be tortured?

 Unsurprisingly, this is a divisive issue. A worldwide poll conducted by BBC indicates 59% against and 41% in favour of torture in the given scenario. This is said to reflect the split between deontological and utilitarian viewpoints. Where deontologists put forward a blanket rejection of torture on grounds of morality and humanitarianism, utilitarians justify it, citing the overall preservation of lives as a positive outcome that triumphs over the suffering of the tortured.

A closer look at the ticking time bomb scenario reveals the flaws of the utilitarian justification for torture. The assumptions embedded within the scenario question the success of torture, and consideration of the long-term implications of torture undermines the presumption of an overall positive outcome.

The first of two key assumptions made when mulling over the ticking time bomb scenario is that one has perfect knowledge. In Lartéguy’s world, the authorities know exactly what the plot is, they know that lives are endangered because of it, and they know unerringly that the apprehended is a terrorist involved. In the real world, we deal with suspicions (certainty of the attack and belief that the person possesses up-to-date operational knowledge) and suspects (those apprehended could very well be civilians mistakenly identified or caught up in the action).

In itself, justifying torture on limited knowledge is emphatically perilous. Exacerbating this is the second assumption – that torture is effective in extracting the required information. Simply put, it is not. Individuals being tortured have a propensity to make up information that may put a stop to their suffering. In addition, the psychological pressure often leads to confusion and memory loss, such that even those who wish to tell the truth cannot do so reliably. From the writings of the jurist Ulpian in the second century CE to reports compiled by the U.S. Intelligence Science Board to the personal testimony of Khmer Rouge Kang Kek Iew, the consensus seems to be that information gained via torture is largely inaccurate.

The minimal success of torture must be weighed against the significant proven costs associated with the act. Such costs go beyond that incurred by those tortured and include: detrimental reliance on inaccurate information, loss of international stature and credibility, and toxic societal effects. While the latter is noticeably less tangible, it is perhaps the most dangerous long-term implication. Luckily, this does not go unrecognised. Torture has been likened to a “cancer of democracy” and strong support exists for the assertion that “civilisation is at once compromised if, in defence of other freedoms, it decides to regress, to accept the possibility of torture as it is seen in the movies”.

There exists no plausible justification for torture. Therefore, solace may be found in the unconditional prohibition of the “repugnant, abhorrent, and immoral” act being entrenched as a jus cogens norm – a fundamental, overriding principle of international law – as well as in the domestic laws of most countries.

Yet, Amnesty International reported the continued use of torture in more than 122 countries in its 2016 report. In such countries, torture is either “redefined” (e.g. the Bush administration changed the parameters of what it means to ‘torture’ between 2002-08), carried out covertly (e.g. the British Army allegedly carried out acts of torture in Northern Ireland in the 1970s), or turned a blind eye to (e.g. acts of torture are common in Palestinian Authority controlled territories).

Convincing support for torture is not uncommon either – Richard Posner, legal scholar and judge of the United States Court of Appeal, wrote “If torture is the only means of obtaining the information necessary to prevent the detonation of a nuclear bomb in Times Square, torture should be used – and will be used – to obtain the information … No one who doubts that this is the case should be in a position of responsibility.” More recently, the use of torture has also been endorsed by US President Donald Trump who commented, “torture works […] and if it doesn’t work, they deserve it anyway”.

Such statements unequivocally play a part in dismantling the global effort to combat torture. Where such efforts rely heavily on international pressure from credible nations, an endorsement from these very nations gives license to dictators and human rights violators to do the same – or worse, escalate the use of torture – without being condemned.

This Article was written by Thiyana Ilangchizian (2nd year, LLB Law), in conjunction with Dicta 2017.  

British Bill of Rights

British Bill of Rights – A rare opportunity for constitutional reform at risk of being wasted.

Rights are an indispensable virtue, rightly revered in our legal system and deserving of protection. Therefore, it is understandable proposals to replace the 1998 Human Rights Act have been consistently criticised, especially given many fear a Bill of Rights would undermine legal protection. Yet, whilst these concerns should not be dismissed, they rarely acknowledge the robustness of our common-law regime and risk creating a one-dimensional debate.

Ignoring the previous Lord Chancellor’s assurances that reform would not “derogate” from any substantive freedoms, even if the 1998 Act were repealed, without replacement, the UK would not be bereft of rights. Many substantive rights currently provided by statute, such as Articles 6 & 10 of the 1998 Act, are already protected under the common-law. Indeed, following 17 years of human rights jurisprudence, these principles will have inevitably been bolstered. Therefore, even without statutory recognition, the judiciary, who would hardly be ambivalent about weaker legal protections, could still utilise the common-law and ensure key principles such as proportionality remained valid.

The sanctity some seem to ascribe to the Human Rights Act is misplaced. Far from an exhaustive text, any opportunity to revisit its substantive rights should be seized upon, as rights are not static but rather responsive to new challenges. A Bill of Rights is a constitutional watershed because it would uniquely allow citizens the space to reflect, debate and lobby for additional rights currently lacking: enhanced data privacy, children’s rights, social/economic rights and the right to die, to name but a few. Although the merits of these rights are debatable, it is undeniable that the growing desire for their recognition requires some response and that judges creatively interpreting one would be inappropriate. A Bill of Rights would offer such an opportunity.

Alternatively, public engagement could not only extend rights but also create a sense of public ownership, enabling the judiciary greater legitimacy to protect them. Indeed, the significance of this popular sovereignty could be recognised by making a Bill of Rights the first article of the UK’s uncodified constitution. Mirroring jurisdictions such as Canada, our system of checks and balances could be vastly improved by conferring upon the judiciary additional powers to overrule any violations of absolute/limited rights, instead of merely declaring them incompatible as currently permitted. Indeed, given the UK disturbing concentration of executive power, the significance for constitutional rebalancing which a Bill of Right could represent, cannot be overstated.

Obviously, this case for a Bill of Rights is highly dependent upon its substance and the elephant in the room might be the UK’s current political climate. However, this politics of identity crisis, which overshadows the UK, must at least be partly informed by an uncertainty over the rights our nation values. Hence just as other nations have successfully used moments of great constitutional significance to engage with citizens and reflect upon the principles underpinning their community, a discussion of the values intrinsically British and within a Bill of Rights, might overcome our own crisis and enable our increasingly fragmented country to rediscover some unity.

Far from the fears that reform would mark the end of rights protection, a British Bill of Rights could provide some much-needed teeth. The risk is that this opportunity will be wasted.

This article was written by Keiron McCabe (2nd year, LLB Law), in conjunction with Dicta 2017.  

Criminal Injustice System?

Wrongful convictions and their prevalence in the UK Criminal Justice System.

Wrongful convictions are synonymous with the miscarriage of justice. The term refers to the conviction and punishment of individuals for acts they did not commit. Thus, submission to wrongful convictions confines the rights of those who have been hard done by the law. Increasing concern for this notion has led to major calls for justice reform within the English legal system—it has encouraged many to reconsider the effectiveness of the various procedures and processes set in place within our legal framework.

As Founder of the UK Innocence Project, Dr. Michael Naughton, commented, “miscarriages of justice are routine, even mundane features of the criminal justice system”. Therefore, any attempts to tackle these injustices must be based on a reassessment of the UK justice system’s adequacy. The system offers little opportunity for direct appellate review of a criminal conviction. Those convicted of a criminal offence are only given once chance to appeal. Whilst this may seem necessary from an administrative outlook, it minimises assurances of legitimate conviction. Ideally, a balance must be struck between the two conflicting objectives, however, in practice this may not necessarily be achievable. Requirements of good administration generally prevail, and so the system inevitably leans towards the former objective.

Reference to the jurisdiction of our friends across the pond shows a slightly different, potentially more favourable procedure: ‘every defendant convicted in the US courts has a right to one direct appeal, a second opportunity for discretionary direct review, and a subsequent opportunity for discretionary collateral review’ (Lisa Griffiths, The Correction of Wrongful Convictions). In these circumstances, there is an increased chance of wrongful convictions being identified and accordingly dealt with. Although, perhaps this is necessary considering that, for many states in America, the death penalty continues to exist. Note, however, that the Criminal Cases Review Commission—an independent organisation provided by the system—exists within the UK legal framework. It reviews convictions and necessitates post-appellate appeals when required. At least this body offers some form of confidence to the UK system.

Withal, despite these extensive procedures injustices persist. Accordingly, it is encouraged to consider the ways in which these wrongdoings arise. As noted by Dr. Kathryn Campbell and Dr. Myriam Denov (Department of Criminology, University of Ottawa) various factors such as ‘erroneous eyewitness identification and testimony, police and prosecutorial misconduct, false confessions, over-reliance on in-custody informants, and unsound forensic science’ all contribute to the truths of injustice within legal frameworks. Each of these elements serve to destabilise the effectiveness of justice systems within any jurisdiction.

The situation is an accepted reality to many, however, various individuals and organisations, for example The Justice Gap, seek reform. Innocence projects have also been developed across the UK. The Innocence Network UK (INUK) is said to have set up 36 innocence projects in universities across the United Kingdom. Numerous cases have been examined and submitted by these member projects to the Criminal Cases Review Commission (CCRC), in the hope of bringing about change. The University of Bristol boasts the first of many established projects of this kind: UoBIP provides ‘specialist pro bono’ work to this area of law. Note, however, that the effectiveness of this work must be questioned—as Jon Robins commented for The Guardian, ‘only one conviction has ever been overturned on the strength of a university innocence project’s work in the UK’. Thus, whilst efforts to amend this issue continue, a lack of promising results provides little optimism for the future.

Many wrongfully convicted individuals suffer from psychological strain. Similarly, the overall impact of wrongful convictions on communities is detrimental. Public faith in state justice is impaired and public safety is placed at risk. The innocent are forced behind bars whilst the guilty roam free. Justice reform is necessary. The work of individual organisations provides a start, however change to the criminal justice system itself is crucial for any significant improvement to arise. The most obvious way to do this would be via a change in procedure.

This Article was written by Priyani Singanayagam (1st year, LLB Law), in conjunction with Dicta 2017.