You Got a Buddy In Me.

Emails from lecturers and module co-ordinators, QOL becoming your second home, reading lists and syllabus uploads – this flurry of activity can mean only one thing. A new university semester is just around the corner.

For me, final year student that I am, there also comes the sobering realisation that this is my final semester. I truly cannot believe it; it seems so surreal to consider how fast the past four years have flown in. I have had a wonderful time at university, meeting new people, making amazing friends and having a wealth of opportunities on offer. It pains me to think that I have only a few months left to enjoy QUB, but I am determined to make the most of the time remaining to me. As such, I am equally determined to give back to my university, and the fantastic student community which has given me so much. So I am glad to write this post today to inform you about the International Buddy Scheme, and share my excitement at taking part for another semester!

I wrote about the International Buddy Scheme at the commencement of the Autumn semester last year, and I found it to be a really enlightening and rewarding experience. I thoroughly enjoyed my time meeting, talking to and hanging out with our lovely international students. I had such a great time, that when I was made aware of the opportunity to apply to be a ‘Buddy’ for the Spring semester, I knew I had to sign up right away. I look forward to spending my last semester welcoming international students to the QUB campus, and getting to know them.

The programme works on a basis of matching up: international and local QUB students are paired together, with the local QUB student acting as a ‘Buddy’ to welcome the international student and act as a point of support, reference and friendship. The scheme has been in operation for several years, and is truly a great way for students to meet each other, make new friends and have a lot of laughs and chats along the way of settling into a new university in a new country.

IMG_7467
Queen’s University Belfast: céad míle fáilte to our new international students!

As a final year student myself, and one who has had a marvellous time at QUB and enjoyed utilising the wonderful resource that is the Student’s Union, I cannot wait to get started once more.

I remember writing in my initial post regarding the International Buddy Scheme how I had worked as a Buddy per se before, but for first year Law students only. As I found working with new students to be such a worthwhile experience, I was excited to work as a Buddy with our new international guests. I can confirm that welcoming and supporting international students last year was rewarding, enjoyable and great fun.

I was able to answer calls and texts from students, meet up for coffee and share my experiences as a student on campus. I thought it was a honour and privilege to be trusted by ‘my’ international students (we Buddies are all assigned students; I felt protective of my group) when they asked me questions or requested advice.

It must be noted that the International Student Pub Crawl was perhaps one of the highlights of the Autumn Semester; there were too many laughs, jokes and terrible dancing sessions to not have fond memories of that night/morning! I felt very much akin to a mother duck leading ducklings around Belfast last night, as I am sure many of my fellow Buddy Leaders did, but it was great fun.

In addition, after studying abroad in the US last year, I know how it feels to be ‘an international student on campus’ and how difficult it initially feels to adjust to cultural differences, make new friends on a new campus and cope with homesickness. A friendly face and a sympathetic listener can work wonders and help you get the most out of studying abroad; I would love to be able to assist with helping new students. I just would like to aim for our new students to feel at home at Queen’s, make many friends and have a memorable start to their studies.

I am looking forward to seeing the scheme commence, especially as I know it promises to be an exciting time for all involved. I think it is a privilege to work alongside other students to represent Queen’s, as I have had a wonderful time here. I cannot wait to get to know the new international students, to hear about their respective countries, to learn from them and to introduce them to student life on campus at QUB.

Thus I look forward to the first ‘Meet Up’ for both Buddies and international students alike tomorrow, Thursday 28th January at 5pm in The Lounge of the QUB SU: you’ve got buddies in us.

The ongoing debate: abortion law in Northern Ireland.

As the end of my first semester of final year law was approaching its conclusion, a news story broke that has proven to be ground-breaking here in Northern Ireland. I can recall exactly where I was at the time the judgment pertaining to humans rights recognition was delivered: I was, ironically enough, in the middle of a seminar for my Understanding Human Rights module. You can imagine that when the news trickled through the class, a murmur arose, and eventually our lecturer used the ruling as an example of the current critique we were studying that day in class.

The case was in relation to Northern Ireland’s abortion law, and the breaking news pertained to the ruling of a High Court Judge that said law, and its almost outright ban on abortion, breaches the human rights of women and girls, including rape victims. It must be noted that Northern Ireland has strict abortion laws: applying an 1861 law that means a woman can seek an abortion only if a doctor determines that carrying a pregnancy to term will endanger her life. Abortions are illegal in cases of rape and fatal foetal abnormality; these were the grounds being contested in the High Court. Moreover, anyone who carries out an illegal procedure can be jailed for life.

Since this ruling, the abortion law in my home state of Northern Ireland has featured heavily in the local media. This past week however has seen it covered by national media. I even spotted it being featured in POLITICO EU today. This is due in no small part to the new DUP party leader and First Minister, Arlene Foster announcing that whilst she would ‘carefully consider’ the recent High Court ruling, ultimately she would adhere to her Democratic Unionist Party’s opposition to reforming strict abortion laws.

Ms Foster, the first female First Minister in the history of the power-sharing executive in Northern Ireland, ‘vowed‘ in early January of this year to prevent the Abortion Act 1967 which provides for the legalisation of abortion in the UK, from being extended to Northern Ireland. However, she did acknowledge that the Executive will have to carefully consider the landmark judgment from the High Court, whereupon Mr Justice Horner ruled that by denying abortions to women who had become pregnant through rape, this was a violation of the women’s human rights laws and a breach of British and European human rights laws.

Now, despite her statement defending the existing law, Ms Foster’s acknowledgement of the November 2015 court ruling suggests politicians in Northern Ireland may be preparing for judicial decisions that would force the Assembly’s hand, and potentially introduce a degree of liberalisation. Mr Justice Horner did rule out imposing changes that could have led to limited terminations taking place in Northern Ireland following his ruling: he stated allowing abortions for victims of sexual crime and cases of fatal foetal abnormality under the present law would ‘be a step too far‘. His decision has thus placed the onus on the Assembly to consider his judgment. At present, there is no legal compunction on Stormont’s politicians to change the law.

After all, whilst the ruling is ground-breaking, generating a lot of discourse, it is not legally binding per se. The judge ruled Northern Ireland’s abortion laws are incompatible with the Human Rights Act 1998 which enshrines the ECHR into domestic law. Declaring a law to be incompatible with the ECHR does not render it invalid per s4(6) of the HRA 1998. The HRA 1998 provides that parliamentary sovereignty remains paramount; in the case of Northern Ireland the Assembly will decide whether to devise a bill pertaining to abortion in the state in light of the judge’s ruling. The Executive may also suggest a bill in light of the ruling.

In sum: new legislation would be needed to enforce the ruling. It will, however, be complicated by the fact that the main political parties in Northern Ireland oppose relaxing abortion restrictions. An alliance of evangelical Protestants, the Catholic Church and a majority of the assembly’s politicians has resulted in Northern Ireland remaining excluded from the UK 1967 legislation.

Now, from a law student perspective: I feel that due to my study of Jurisprudence this semester, I have been introduced to a variety of critical theories.  These different critical lenses introduced to have opened my eyes, so to speak, in that I have a new and fresh perspective on issues which I may not have had before. I will focus on the application of feminist critical theory to this current affairs story from Northern Ireland. This story illustrates the entwined nature of politics and law, especially in relation to human rights recognition – a close relationship I always reiterate in my posts.

​Regarding the High Court ruling on NI’s abortion law​​, it can be determined the judge recognised the rights of women had been restricted, and legally so, by the Northern Irish government. Thus, it could be submitted that Horner J was striving to uphold the human rights of women in Northern Ireland.

This view probably would have been all I considered of the matter, but using the Feminist critical lens, I feel that I have been equipped to read further into the issue than what I would have done before. I will now apply this critical theory as follows.

Firstly, we could critique the ruling itself: Horner J stated ‘I conclude that the Article Eight rights of women in Northern Ireland who are pregnant with fatal foetal abnormalities or who are pregnant as a result of sexual crime are breached by the impugned provisions’. He essentially ruled the current law should be expanded to provide for abortion in the cases of fatal foetal abnormalities, incest and rape alongside the current provision of facilitation of the mother’s well-being. He did not rule that the current law, being generally a severe restriction on abortion, was in fact detrimental to women’s rights – he ruled that the almost absolute ban was, and to me this marks a distinction being made. The result is a finding of something very different. A Feminist critique would say this ruling was disappointing, as it still maintains the government has a right to legislate against the woman’s right to control her own body and make her own choices. It continues patriarchal oppression, ​​subjugating the female body to the legislative rule of the mostly male Assembly. Through Horner J’s suggestion that the Assembly now legislate to give effect to his ruling, I venture that a radical feminist would argue that this is an incomplete ruling, and is the consequence of a male judge having presided over the case. Arguably, due to his male gender, he may have failed to fully comprehend a wholly female experience.

In considering the notion of human rights in this issue, I am reminded of MacKinnon and her question of whether women are human, or merely treated as bodies to be owned and used: abortion essentially becomes an argument of the rights of the mother v the rights of the unborn child, resulting in rendering the mother as a vessel, and not as a person. Therefore we should find ourselves asking: what must be present to define someone as ‘human’ and thus entitled to rights? Moreover, we cannot assume all women share the same thoughts on ruling of Horner J, or indeed even the same thoughts on feminism. I guarantee you that what I define as feminism will differ compared to another’s perspective on same.

Brown makes an interesting ​point when she remarks there is a paradox at play in rights discourse; that the more specified ‘rights ​​for women’ become, the more likely a fence is created around the definition of ‘woman’.  For example, this ruling arguably considers all women as potential child-bearers -what about trans* women? What about women would are not able to have children?

I would submit that the greatest paradox present in human rights discourse (indeed, in general political and legal discourse) is that to rely upon rights, we must be labelled in such a manner to deserve rights. Therefore women must be branded ‘victims of state oppression’ to be granted a right to control their bodies, and in order to obtain this right from the same state. It is a cyclic argument, with no apparent end in sight.

The Health Minister announced in December 2015 there were new proposed abortion guidelines for healthcare staff in Northern Ireland being considered by the Stormont Executive. This confirmation came merely 24 hours after the High Court ruling, even though such proposals have been floated for months. A case of political expediency and convenience? Perhaps, especially when the confirmation pertaining to these proposed new healthcare guidelines stated they will only be issued if they are approved by the Stormont Executive.

The debate will continue, of this I have no doubt. In addition, the decision to liberalise abortion laws in Northern Ireland heavily relies upon the Executive. But 2016 is a more important year in Northern Ireland, marking as it does the Assembly elections. It will be interesting to see whether the High Court ruling is discussed in party manifestos, whether any party pledges to propose a bill to legally recognise the court ruling and modify the current law. If the DUP returns as the largest party, which it traditionally does, then if such a bill were to be proposed and voted on, would the party once again evoke a petition of concern to block the voting results? I will await the election results with interest, for there may be important legal developments which arise as a result.

Political Post-Mortems: of pollsters and parties.

I haven’t written -shock horror- about the political scene for a while, so I thought I ought to remedy this. Tuesday provided me with the required inspiration and story.

The 19th January saw not one, but two important reports of political significance published. Yes, Tuesday marked the release of the two post-mortems into the 2015 General Election: the pollsters’ examination of how they could have gotten the election so wrong, and the Labour party’s internal inquiry into how exactly they lost said election. Because you know, nothing helps boost a party fraught with internal struggles, tension and splits like a) reminding them their party lost at the General Election, and b) reminding them one of the reasons their party lost was due to the public’s perception of the party leader. (Not that this is an issue of topical relevance, of course.) But I digress.

The first report, which is the preliminary findings of an independent inquiry established by the British Polling Council and the Market Research Society, seemingly concludes that the pollsters appeared to have succumbed to ‘herding’. This essentially occurs when individual companies deliberately alter their sampling formulae to ensure they are producing results not dissimilar to those published by their competitors. Moreover, the report states that sample failures are to blame for the polling mistakes; pollsters generally underestimated the support for the Conservatives ahead of the general election because of a failure to include sufficient numbers of Tory-leaning voters in their survey samples. As the report puts it, there had been a ‘systematic over-representation of Labour voters and under-representation of Conservative voters’. Judging by the sharp contrast between the polling predictions and the actual result, that is quite an understatement.

Now, most surveys during the campaign last year consistently placed Labour and the Conservatives on an equal footing or within the margin of error, especially in the lead up to May. I remember being in America and following the news, and was led to believe I would return home to vote in an election which would produce a hung Parliament. I had to explain what that term meant, and what the implications of such a Parliament would be to some of my American friends. So imagine the thrill of surprise I felt on results night, when the now-infamous exit poll flashed on the television screen, revealing the Conservatives to be on course for an outright majority win. From the polls proclaiming them to be neck-and-neck, the Tories went on to defeat Labour by some 6.5% nationally. That is some difference to be sure, and thus the question was raised: how could the pollsters have called so incorrectly? Cue the announcement there would be an inquest of sorts into the conducted polling.

According to this report, it was determined the evident survey imbalance was a result of older voters being harder to find, and as traditionally the older voter is Conservative, this led to a disparity of views being surveyed. In addition, young voters were easier to reach, and in particular the younger voters polled were far more likely to vote than their peers, being more engaged in politics than their peers. This category arguably led to the over-sampling and representation of Labour-leaning voters.

It was also concluded that there was a category of ‘busier voters’, who were more difficult to reach and so their view not considered in the polling. As such, it appears this category were also likely to be Conservative-leaning, given the disparity in sampling and recorded representation across collective polling.

The report also stated any evidence of a late swing from Labour to the Conservatives because of public fears of an SNP-Labour pact were in fact ‘inconsistent’. And speaking of Labour…

The report assessing Labour’s performance at the General Election, seeking to determine where the party went wrong, appears to conclude  Labour lost because voters did not trust the party on the economy, leadership, or immigration. Intriguingly, the Beckett Report was keen to reiterate that many of the popular explanations pertaining to Labour’s loss in 2015 ‘should be treated with caution‘, and may not actually explain  why the party lost. Some of these popular and oft-quoted explanations include branding Labour as being perceived as ‘too left wing’ under Ed Miliband’s leadership, as well as fears that Labour was considered ‘anti-business’ and ‘anti-aspiration’. (Goodness me, I had thought that word had been consigned to the past. I thought wrong; it has come back with a vengeance to haunt me.)

Instead of the above explanations being deemed as valid, the report submitted the weight of research evidence undertaken since the General Election argues a number of other so-called ‘contributory’ reasons are more significant. Such contributory reasons, the report states, include the electorate’s perceived weakness of Ed Miliband, a particular fear amongst English voters that Labour would work with, and be controlled by the SNP, and a belief that the economic crisis was ill-managed under the last Labour government. The report also finds that Labour failed to convince voters of its welfare and immigration policies.

Another contributory reason, which may be overlooked but I believe is important considering the current political landscape, is considering the political ‘revolution’ of sorts which was, and arguably still is, ongoing. I am referring to the utter dominance displayed by the SNP, which resulted in the virtual extinction of all other political parties in Scotland. This would have been a factor beyond the control of Labour during the election campaign, but arguably Labour did not take the SNP threat seriously. The result? Scottish Labour fell, even in their historic strongholds. The report itself states:

…We were badly beaten. The collapse in Scotland made it impossible for us to be the biggest party and the Liberal Democrat collapse enabled the Tories to gain an overall majority and keep us out of power…

The report also noted – and this may make for painful reading for Labour –  it would be difficult for the party to win in the 2020 General Election. This essentially comes down to changes to constituency boundaries, voter registration changes, and restrictions on trade union funding of parties: all due to policies adopted by the current Conservative government. Labour’s loss in 2015 was the Conservatives’ gain, and may continue to be so in 2020.

These two reports are intriguingly-interlinked, hence their sharing a blog post. Why? I hear you ask. Well, the Labour party would have carefully gathered and scrutinised the polls which, declaring Labour to be on equal footing with the Conservatives, ultimately suggested a hung Parliament. Labour therefore would have assumed it was on track to enter government, as part of a coalition or if it pushed hard enough in the final days, a minority government. Remember, whilst we the electorate, the Press and political analysts were sidelined by the polls, so too were the political parties themselves. Polls dictate the actions of campaigning politicians, so it is fair to assume that Labour acted according to the polls during their 2015 campaign.

Which brings me to the next point. If the findings of the independent inquiry established to examine the failings of the pollsters are correct, that the sampling was scattered and imbalanced, what did the advisers in the Labour camp think when scrutinising the polls? What did they say to the Labour leadership? Most especially the poll findings regarding the electorate’s views in relation to leadership, immigration, and the economy? Remember, Miliband was still viewed as the weaker leader compared to Cameron, and Labour was taking hits pertaining to its handling of the economic crisis when it was in government. This is despite, as the independent report suggests, these polling results being over-representative of Labour-leaning voters, and under-representative of Conservative-leaning voters. So goodness knows what the results would have been had the polling surveys been conducted on an equal footing. On the basis of both discussed reports’ findings, the surveys published in 2015 painted a sympathetic picture, but an unrealistic one.

Considering the establishment of an independent inquiry, polling companies do appear sincere to ensure such mistakes as witnessed in 2015 are not repeated come 2020. After all, there is money at stake: to appear complacent and unwilling to admit to mistakes in their survey process could undermine these companies commercially. Yet, it could be argued this is the same for the Labour party, but on an electoral basis. Labour have been presented with the post-mortem results pertaining to their electoral defeat in 2015, and cannot afford to seem complacent and unwilling to change.

We shall have to wait and see whether the current leadership will consider the findings of the Beckett Report with the same resolve to change the party as the polling companies’ resolve to rectify their mistakes. The difference is one aspires to govern, whilst the other aspires to predict who will govern. So, no pressure.

Coursework Conquered: a photo-essay.

I invite you all to pause, and raise a glass. Mark the date in your collective calenders; a red letter day that some of us (see: myself) considered a distant dream. But on the 13th January, in the Year of Our Lord MMXVI, I did submit my final coursework research article. The Heavens opened and the stars aligned as I watched the online time stamp mark the successful upload. Cue jubilant celebrations in the form of my wearily stumbling upstairs, off to my bed and sleeping for a consecutive five hours. And upon waking, wearily stumbled back downstairs to enquire whether it was morning or night.

My sarcastic comments aside, this actually was quite the day, marking as it did the first time since the Autumn Semester concluded that I was free from research and work. It was an occasion worthy of a William Wallace circa Braveheart ‘freedom’ scream. Whilst I may not have expressed my relief in such a manner, there is no denying that I welcomed the conclusion of assessment. This intense feeling of relief that comes after making deadlines and submitting assessments is one which I think many fellow students will understand.

Now, do not get me wrong, I actually came to enjoy the weeks of research and studying, pouring over numerous textbooks and printed articles, scribbling copious notes and having ‘eureka!’ moments when I found evidence to support my arguments, or when my jumbled collection of ideas and plans neatly came together in a persuasive argument. I do feel however QCAT – my university’s online library catalogue service – and myself became so closely acquainted through my many visits that we may as well have been involved in a tumultuous relationship. (A relationship which was punctuated by my seedy affairs with Jstor and HeinOnline, alas.)

Anyway, I discovered that I actually do enjoy the research/argument academic malarkey, especially when I am essentially critiquing everything via CLS. (For a self-confessed cynic such as I myself, CLS is the legal critique-equivalent of a match made in Heaven.) It was fascinating to develop my legal knowledge and understanding, and challenging perspectives to discover a new way in which to think, and to see issues differently.

Some of my reading, for example my research into HIV-influenced legislation and policy, left me feeling upset: how could the law, a supposedly neutral body, permit such marginalisation and discrimination against those in society who required its very protection from societal stigma and perpetrated myths? Another article focused on the relationship between law and politics, and I examined the cases of the Birmingham Six, Guildford Four and Maguire Seven. Reading about the appalling miscarriages of justice was terrible; reading the obiter dicta of the trial judges, and judicial comments made upon successful overturning of convictions was simply horrifying. My parents kept reminding me that as a ‘ceasefire baby’, I have to understand what times were like during The Troubles. The political tension, the perpetual fear, the anti-Irish sentiment in mainland UK, bitter divides in NI and those horrific photographs of bombing aftermaths. I can understand this reasoning, and its influence on the judiciary during these times to seek convictions, but I cannot understand or forgive the shameful treatment of those innocent people by institutions which are supposed to prevent miscarriages of justice: the police and the judiciary/court system.

No doubt in time I will write blog posts about the above – an exercise in catharsis of sorts. However, I wanted to use this week-anniversary post as a means of sharing my coursework travails and student-Christmas experience in a different way: a photo-essay. So without further ado, allow me to present ‘Coursework Conquered‘.

  1. Cracker coercion.
passive aggressive Christmas cracker
I did take time off during Christmas, perhaps urged on by this passive-aggressive suggestion courtesy of a Christmas cracker.

2. Caffeine Consumption: Permitted.

IMG_8841[1]
Some of you may know that as part of a charity fund-raising campaign, I gave up coffee from 1st-25th December. The 26th marked my return to caffeine consumption. Petition to rename St Stephen’s Day/Boxing Day in honour of this moment?
3. Back to the note-taking board.

IMG_8837[1]
Legal Theory was up first. I opted to write about the  ‘The Case of the Speluncean Explorers’ question. First things first: re-read and carefully annotate the article. (Stylish stationery is a must.)
4. Christmas Presents.

IMG_8838[1]
These are three fabulous legal texts which I was very fortunate to receive as Christmas presents from my parents. You can take the girl from law…
5. Whose Opinion is it, Anyway?

IMG_8870[1]
I began scribbling plans re structure, such as identifying the legal theories influencing each judicial opinion. Which I promptly stuck on the back of my file, for some reason. (Spoiler: I disagreed with Trupenny CJ, and argued my agreement with Foster J. Not that I support cannibalism, mind you. I prefer purposive interpretation. I’m veggie, anyway.)
6. Did someone say, ‘Jurisprudence’…?

IMG_8989[1]
And so back to the books I did go, re-reading umpteen passages in search of concrete evidence and quotes to support my arguments. (Douzinas and Gearey conclude their chapters with literary/poetic passages, which in the middle of midnight reading caused me to wonder whether I was hallucinating.)
7. A break from reading? Let’s…read.

IMG_8911[1]
As I wrote my Legal Theory essay, I took breaks to update my notes and plans for my second article, for my Understanding Human Rights module. I went from listening to the Serial podcasts to an old favourite, Welcome to Night Vale, and dug out the book of same. Hence why one of these books is not like the other.
8. One down, two to go.

IMG_8991[1]
Before long, my Legal Theory article was written, edited and submitted. I could not relax or celebrate, though. It was one down, but two to go. Cue hitting the books once more, this time to find evidence to support my argument that human rights discourse can permit the marginalisation of HIV positive persons. It made for grim reading. (And those many Jurisprudence books made an appearance, too.)
9. With a little help from Bright Network.

IMG_8921[1]
In between researching, I was also carrying out duties required of my position as Secretary for QUB Children in Crossfire, promoting the EU Studies Fair, and submitting internship applications. Phew. Mercifully, help was at hand: Bright Network sent me this lovely notebook to help keep me organised.
10. I know how you feel, Kelman.

CLS Kelman quote
Simply put: apparently legal theorist Mark Kelman understood the struggles of final year law back in 1981.

11. Hello Foucault, my old friend.

Foucault ten lines one sentence
Undoubtedly, Michel Foucault was a very intelligent man. But truly, did he require ten lines to formulate one sentence? I was very tried and rather stressed when I initially read this passage, and it was late in the night. I cried from frustration, I kid you not. Some twenty years from now, I will look back upon this as ‘the night Foucault caused me to cry from beyond the grave, because he never knew when it was acceptable to stop.’

12. A Tale of Two Texts.

Foucault this is not what I want to talk about
It is always amusing and exasperating when an academic writes copiously, before commenting ‘this is not what I want to talk about’. Guess who is the academic in question? Mais oui, it was Foucault. Mon cher prof. (It was the best of times, it was the worst of times…)

13. Two down, one to go, and the end is almost in sight.

CJP Leaning Tower of InJustice
Before long, I had written, edited and submitted by Understanding Human Rights coursework, with the erstwhile vow that I would never concede such prejudice as practised during the HIV epidemic. Then, it was on the last chapter, aka Courts and Judicial Power. Cue tackling this leaning tower of political-legal texts.

14. If you completed coursework, and didn’t post it on Facebook, did you really complete your coursework?

Victory is mine fb post
When I submitted my Courts and Judicial Power coursework, I was feeling, shall I say, bitter about the horrible miscarriages of justice. I attempted to cheer myself up by reverting to The West Wing. Cue channelling my inner Josh Lyman with a rendition of the infamous ‘victory is mine’ speech.

15.Diary Confirmation.

IMG_9016[1]
Official photographic representation of my date of freedom.
16. Let’s take a break from reading by reading, Part Two.

IMG_8949[1]
Just some of the books I am eagerly looking forward to reading for pleasure in lieu of research. There isn’t any rest for the wicked! (If by wicked you mean a voracious reader.)

Business headlines: a commercial awareness walk-through.

As a law student, I have read many articles and listened to many a presentation over the years pertaining to commercial awareness. It has been stressed that this is a vital, and necessary skill for aspiring lawyers. Moreover, I feel that this is a trait necessary for all aspiring lawyers, not simply those seeking to enter the commercial practice area. Law itself is a business, many different legal areas rely on understanding the business sector, whether directly (such as commercial, litigation, IT) or indirectly (I’m going to say public law here: there may be a public interest in planning applications for business development, judicial review may be sought for  rejected planning request or business merger, and so on). Consequently, those hoping to enter the legal professional will have to have some understanding of the business world and how it operates. It is at this point that commercial awareness comes into play.

Essentially, law students need to have a grasp of what commercial awareness is, and what it entails as a skill. However – and let’s be honest here – the whole subject sounds rather vague. What exactly does ‘commercial awareness’ mean? How can you acquire this skill, and how do you improve upon it?

Cue the topic of this blog post, as I seek to provide some advice with tackling this mysterious, catch-all term. I will list a news story from the recent week pertaining to the business sector, and illustrate how you can make the most of this from a commerical perspective, and understand its significance.

editing at the laptop with coffee again

FTSE (ill)Fortune

Following the pattern of the past several weeks in a row, the FTSE 100 closed down yesterday. On the 15th January, it closed at 5,804.10 points, which marked a drop of 114.13 points, or some 1.93%. 

Okay, I hear you ask. That sounds bad. Well it is, as that percentage marks a loss of almost £30bn in value. But what exactly does it mean? Well, let’s get stuck in.

1) First thing to bear in mind is that the FTSE is an index, and is composed of the 100 largest companies listed on the London Stock Exchange (LSE). These are often referred to as ‘blue chip’ companies, and the index is seen traditionally as a good indication of the performance of major companies listed in the UK.  The index is calculated every 15 seconds on every weekday -excluding UK public holidays – from 8:00AM when the market opens until 4:30PM, when the market closes. So, that figure you see mentioned on the evening news is actually the closing value.

How does it work?: The level of the FTSE 100 is calculated using the total market capitalisation of the constituent companies, and the index value to produce the single figure you see on the news. Market capitalisation or ‘market cap’, is the total market value of the shares outstanding of a publicly traded company. It is equal to the current share price times the number of shares outstanding.

Since the total market capitalisation is affected by the individual share prices of the companies, as share prices change throughout the day, the index value changes too.

In sum: when the FTSE 100 is ‘up’ or ‘down’, the change is being quoted against the previous day’s close – essentially a comparison measure of performance on a daily basis.

So, why do we care if it goes ‘up’ or ‘down’?: The level of the FTSE 100 affects most people in the UK even if they do not directly invest in it for themselves. How so? Well, this is because as pension fund holders whose investments are probably invested in UK equities, how well the index is performing directly affects the return they will receive.

I mentioned previously the index is viewed as a good indication of how major companies are performing. If they are performing poorly, generating less revenue than expected, or having been hit by a sector-specific issue (think the Volkswagen emission scandal, for example; in October 2015 Volkswagen posted its first quarterly loss for 15 years of €2.5bn and now Renault has had to admit to a fraud raid conducted on its premises) then their listing will depreciate. Consequently, its stocks subsequently lose value. Investors in said stock therefore lose money on their investment.

Fun Facts: the largest one-day percentage fall on the FTSE 100 was on the 20th October 1987 at 12.22%; this was the day following ‘Black Monday’. It reached its highest peak to date of 6930.2 on the 30th December 1999, and its lowest point of 3529.86 on the 5th March 2009 aka the depths of the global recession.

2) Second thing to bear in mind: The FTSE 100 is also a fairly good reflection of economic and international events. It will often drop in response to markets falling around the world. Remember, markets operate on a global scale: what affects one will often spread, affecting others.

For example, there are two factors affecting the FTSE 100 at the current time, assisting in the recent drop.

i) China Chaos, and
ii) Crude oil prices crunch-time.

These two factors are actually entwined. The price of a barrel of crude oil dropped below the $30 mark about three times this week, which triggered a mass sell in China. China, already having a shaky start to the year, has reached ‘bear’ market territory, meaning prices of securities have recorded a fall of 2o percent plus from a recent high. To put this into perspective: China’s benchmark index has fallen by almost 21 percent, after hitting its December peak just three weeks ago. This is raising fears that China’s economy is contracting. Consider the investment China has abroad. Remember that only recently its currency was approved by the IMF as a reserve currency.

Basically, what is happening in China is worrying markets around the world, the result being constant drops, value wiped off listings and investors losing money. Whilst the FTSE 100 is having its worst new year on record, the German DAX and the CAC in Paris also fell, and Wall Street also saw US markets faltering. Economies such the UK’s may be tentatively recovering post-2008 recession, but should the Chinese market collapse, it will have a devastating domino effect around the world.

As for falling oil prices – those who drive a car will be enjoying the price drop at the pumps and importers of oil will be happy, but companies such as BHP for example are ruing the drop. After announcing an expected £5bn writedown on the value of its US shale assets on the 15th January, the firm cited the plunging value of shale gas and oil and said it would be cutting down on its rig operations in response. And cutting down on operations will result in cutting jobs, too.

Commercial awareness: as stated above, Chinese markets are weakening, with a knock-on effect around the world. The oil industry is suffering from steady price drops, which will have a serious repercussion on the balance sheets of oil-producing and exporting nations.

Moreover, this could cause a sell-out spike, whereby worried investors may ask their portfolio manager to sell their shares, as they are concerned they are only losing money as the markets continue to tumble. This has another knock-on effect, in the sense that a mass sell-out results in the listed companies losing more value off their stock share, and so the FTSE 100 as a whole records another drop in overall value. Sell-outs have already occurred over the past few weeks in response to the terrible year 2016 is proving to be for global markets already.

Yet there could be hope for the companies and markets as a whole, in the sense that there are those who believe this sell-out may be coming to an end, and so there will not be a mass sell-out. The market needs a ‘bounce’ – think of it as an electric shock from a defibrillator – which is essentially a recovery from a period of decline, or in the case of the Chinese markets, a ‘bear’ market. This bounce will in turn spark some confidence in traders to buy stock shares, or ‘buy a bounce’. Yet this is really only a short-term strategy – traders do this in an attempt to profit from a short-term market correction i.e. recovery – and so a ‘bounce’ is, in itself, a temporary recovery. So, it could lead to a repeat of the above, a rather costly cycle. Then again, markets are always in a state of flux, and you never truly know how it will flow from one day to the next!

In sum: the markets are under pressure, governments will be keeping a close watch on their stock markets and begin to calculate the effects on their national economies. In cases such as China, the government may even step in and temporarily shut down the markets to prevent further losses. Keep in mind that the Eurozone is under strain generally, too. Investors will either be hesitant with their money, therefore displaying limited confidence in the markets and so listed companies, or else they will be bold and buy in, thinking a temporary recovery is on the way and they can profit from it.

All this I was able to ascertain from watching the news and reading a few online articles. I cannot recommend keeping on top of current affairs enough to all law students. It pays to know what is going on in the world. Remember, events in one area e.g. business will have a knock-on effect in other areas, such as law and politics.

So make yourself think: read an article, watch the news and think about the ramifications of a further drop in the stock market may be. Moreover, imagine you were advising a client who wanted to merge with a company in an industry sector which is currently depreciating in value. What would say/do? Practice makes perfect, so keep repeating this exercise and keep your mind open. Law firms want candidates who are aware of current affairs, and who can piece together the jigsaw, understanding how law and business entwine.

I hope I have been able to provide some idea and support into this area with this post; remember that it is about the process of thinking and interpreting. Being commercially aware does not mean being a PhD economist with all the answers. Rather, it means you attempt to make sense of complex area with the knowledge you have and the research you have undertaken.

Of Courts, Consultations and Changes.

Goodness me, it seems that with every passing day there is another development pertaining to reforming the courts and UK legal system. I suppose I find such stories so interesting because they illustrate how policy and consultations are taken into account when shaping our legal system. I feel that sometimes people think that there is a sharp distinction and division between the political realm and the legal system; I feel that this couldn’t be farther from the truth.

Once again, I will cover these latest developments in a blog post. And once again, this is a current affairs story of the kind that law students need to be aware of. Fellow law students, consider the following post a legal awareness story, and an important example of how politics and the legal sphere interact.

Legal Development Number One: to increase, or not to increase?

At the end of last year, I wrote a post in relation to the announcement by the Lord Chancellor and Justice Secretary Michael Gove that he would be repealing the criminal courts charge. The criminal courts charge, the brainwave of the previous Justice Secretary Chris Grayling had attracted much criticism and was unpopular.

In my post, I examined the charge, highlighting the stories pertaining to the charge which had made the news, such as the case of Magistrate Nigel Allcoat, who was suspended and later resigned due to his contribution towards paying the mandatory charge on behalf of an asylum seeker who had appeared before him. I concluded the announcement to repeal the charge was evidence that sometimes, criticism of a governmental policy can indeed bring about change.

So imagine my exasperation to discover that despite the unpopularity of the criminal courts charge and its apparent repeal, there was a subsequent announcement last year that there would be a rise in court fees. As I noted another post, apparently we are being subject to a case of reduce fees in one area to merely increase fees in another, with the MOJ announcing a fresh round of court fee increases, apparently necessary to plug a £1 billion funding gap in the UK justice system.

Today came the news that the UK government will retain the cap on the 5% issue fee for money claims above £10,000, having previously proposed such a cap would either be increased or removed. As noted in the summary article I read on Lexology, the apparent reason for this decision is because it is still too early to assess the impact of the increases introduced in April 2015. The government does not want to implement additional increases before understanding the effect of the initial changes from last year. You can read a detailed background to the changes from early 2015 in this article.

Upon approval of the relevant statutory instrument, civil court fees will increase by 10%. These are among the new increases announced last year after the results of a summer consultation. A range of civil proceedings, having been unaffected by the April 2015 increases, will be affected. This will include enforcement proceedings, determination of costs proceedings and civil business in magistrates’ courts.

Legal Development Number Two: Two roads diverged in the Courts, and I took the one less travelled by.

I read another interesting article this morning, this one in relation to so-called litigation-culture in the UK legal system. This article took at its focus two new pilot schemes in the Rolls Building of the Royal Courts of Justice. These two schemes are the ‘shorter trial procedure’ and the ‘flexible trial procedure’. I will briefly summarise both respectively.

The ‘shorter trial procedure’ aims to resolve disputes which do not require extensive disclosure, witness or expert evidence on a commercial time-scale. It aims to enable parties to reach trial within ten months after proceedings were issued, with the maximum length of trial set at four days with an assigned judge. Moreover, costs budgeting shall not apply, unless the parties had agreed to its application. In relation to disclosure, it is limited to documents relied upon, and documents requested by the other party and either agreed or ordered.  Factual and expert evidence is to be submitted in writing, and will be limited in length – unless otherwise ordered.

The ‘flexible trial procedure’ aims to enable parties, by agreement, to adapt trial procedure to suit their particular case. This, it is hoped, will result in a simplified and expedited trial. However, whilst the court shall seek to respect any such agreements, it does retain ultimate control over any adopted procedure.

If you are interested in reading more about the above procedures, you can read this article from the Judiciary.gov.uk website.There is also a pdf document which provides additional, detailed information about the aims and structures of the two schemes.

Both these schemes came into effect in October of last year. The objective of the schemes was to aspire for shorter, and more flexible procedures to be adopted in claims issued in the Rolls Building courts. The schemes are to run for two years, and the hope is that these procedures will enable parties to achieve significant savings regarding the time and cost of litigation.

As the article notes, the cost and time involved in litigation in the UK courts has been a cause of concern for some of the UK judiciary. The article states that this concern may stem from the strain faced by the English civil justice system: it is facing increased competition from other jurisdictions, especially in the area of international dispute resolution, and adjudication in the area of construction disputes. The Lexology article provides an interesting and in-depth commentary on the above schemes, and it definitely worth reading.

I thought it was interesting to read about this change in the courts, as it illustrates how the legal system must adapt and change in light of new challenges and constraints. To ensure an effective and efficient system, and thus an effective and efficient service for those seeking to utilise it, the legal system must be able to respond to challenge.

R v A (No 2): a case for a diverse judiciary.

As some of you may be aware, I am currently inundated with coursework. All three of my coursework pieces are research-led, meaning that I have to go away and undertake research to find evidence to support my argument in each. This is fascinating and enjoyable to be fair, and the most interesting note to date is how easily it is to see how a certain perspective influences decision-making. My study of Jurisprudence in particular this semester has resulted in my realisation of the influence certain theories have on the judiciary.

With the above in mind, I wanted to share my thoughts with you in relation to perspective influence and decision-making. This I will do through the examination and discussion of the House of Lords’ decision in the R v A (No 2) case. I feel this case illustrates there is a case to be made for a diverse judiciary in terms of gender; this may result in a diverse judiciary on the basis of perspective also. I think my finding can be supported when the original judgment is compared to the Feminist Judgments Project’s re-writing of the judgment.

This marks the first time I post an academic piece on my blog, which is rather exciting. Full disclosure: this post is based on a piece of coursework I submitted in November 2015.

Without further ado, let’s begin.

R v A (No 2): a case for a diverse judiciary

The case of R v A (No 2)[1] is deemed controversial due to the House of Lords’ judgment. It invokes particular criticism from feminists, as the decision affords trial judges discretion in the admittance of relevant evidence of the complainant’s sexual history, and ensures the fair trial rights of the defendant to the detriment of the victim’s privacy rights. The Lords’ decision prompts consideration of whether their (all-male) gender influenced their legal interpretation. The Feminist Judgments Project interpretation reaches a contrasting judgment through feminist critique; I would submit it illustrates how a different perspective in legal interpretation results in a startling difference in decision-making.

The case facts and history

In order to understand the delivered judgments, a brief summary of the case facts will be provided. Note how the facts are interpreted differently in both judgments in terms of the argument of consent.

The complainant and the defendant’s friend and housemate engaged in sexual activity on the 13th June 2000. The next day, upon walking to a local hospital, the defendant fell. When attempting to help the defendant, the complainant stated she was pulled down and raped. She reported the incident to the police that afternoon.[2] The defendant submitted in defence the sexual intercourse occurred with the consent of the complainant and further argued that the complainant had initiated consensual sexual intercourse. Moreover, it was submitted this was part of a continuing sexual relationship, with the last instance of such sexual activity taking place a week prior to the alleged rape.

The issue which resulted in the case reaching the House of Lords arose when Counsel for the defendant sought leave to cross-examine the complainant regarding the alleged previous sexual relationship to provide evidence to support the defendant’s defence of his belief in consent. Relying upon s41 of the Youth Justice and Criminal Evidence Act 1999, the trial judge ruled whilst the complainant could be questioned regarding sexual activity relating to the defendant’s friend, she could not be questioned regarding previous sexual relationship with the defendant. However, the trial judge opined this ruling may breach provisions pursuant to Art. 6, the right to fair trial under the European Convention of Human Rights as implemented in the Human Rights Act 1998.[3] The trial judge gave leave to the defendant to appeal, and the defendant exercised that right.

Upon appeal, Rose LJ opined evidence of a previous sexual relationship between the defendant and complainant was permissible under s41 (3)(a) of the 1999 Act in relation to the defendant’s belief in the complainant’s consent. Rose LJ stated his concern for the Art. 6 right of the defendant, believing a previous sexual relationship may be relevant to the issue of consent as well as belief in consent.[4] Thus evidence of a previous sexual relationship was admissible. The Court of Appeal granted appeal to the House of Lords via the question: ‘May a sexual relationship between a defendant and complainant be relevant to the issue of consent so as to render its exclusion under s41 of the Youth Justice and Criminal Evidence Act, 1999 a contravention of the defendant’s right to fair trial?’ The House of Lords dismissed the appeal.

The original judgment of R v A (No 2)

The House of Lords were unanimous that on a straightforward application of s41 of the 1999 Act, the evidence relating to the previous sexual relationship would be inadmissible, and omission of evidence may result in an unfair trial. They stated rape victims should not be subjected to harsh questioning relating to previous sexual history; Lord Slynn described this as ‘harassment…very unjust to the woman’[5] and noted it resulted in fewer rape reports. Lord Hope proclaimed rape as the ‘most humiliating, distressing’ of crimes yet stated ‘balance must be struck’[6] in relation to the Art. 6 right of the defendant, and the complainant’s right not to be subject to humiliating questioning. Noting non-consent is an essential element to be established, the defendant must be afforded the opportunity to cross-examine, and submit evidence on that issue: that is an ‘essential element of his right to a fair trial’[7]. Therefore whilst the aim of the 1999 Act was to protect rape victims from unwarranted intrusions into their private lives, the ‘gateways’ method provided by the 1999 Act was ‘legislative overkill’ due to the ‘excessive breadth of s41’ wherein the ‘threshold requirement [is] too high’[8].

Confusingly, given the conclusion reached relating to the breach of the defendant’s Art. 6 rights, the Law Lords declined to issue a declaration of incompatibility under s4 of the HRA. Instead, they utilised the obligation under s3 of the HRA to read and give effect to legislation as far as possible to do so to ensure compatibility with Convention rights. Consequently, a strained interpretation of the ‘similar fact’ gateway under s41 (3)(c) was reached, whereby the test of admissibility of sexual history evidence is whether such evidence is ‘so relevant to the issue of consent that to exclude it would endanger’ the defendant’s Art. 6 right to a fair trial.[9] The House of Lords stated when it comes to sexual history evidence, the determination to allow for admission to the court should be left to the judicial discretion.

The rewritten judgment of R v A (No 2)

Feminist legal theory ‘aspires to produce a critical interpretation of legal practices’[10] and this is evident in the re-written judgment. McGlynn adopts a constructive interpretation, seeking to utilise legal principles such as integrity of the law to provide a coherent and logical judgment which realises the impact of the decision. McGlynn held there was no contravention of the defendant’s right to a fair trial; the defendant’s defence was his belief in consent but consent must be given afresh on each occasion of sexual activity[11]. There thus was no logical basis to admit sexual history evidence under s41. Her judgment draws on s276 of the Canadian Criminal Code which specifically precludes the admission of sexual history evidence to support an inference that complainant is more likely to have consented to the sexual activity forming the case’s subject-matter[12]. On this basis, she rejects propensity reasoning in determining previous sexual history as relevant to the case and disagrees that the four gateways are too broad[13]. Rather, she determines these gateways found in s41 accommodate relevant sexual history evidence and concludes there is no need for a strained interpretation of s41 resulting in a test of admissibility[14].

My case for a diverse judiciary as evidenced by the re-written judgment

I feel the re-written judgment exposes ‘the partiality of the original decision’[15] and provides evidence to suggest feminist judges are committed to eliminating the use of gender stereotypes and rape myths; ‘myths, assumptions, stereotypes… continue to contaminate’[16] and adversely impact victims.

I mentioned previously that the reader should take note of the issue of consent; the defendant maintained that he believed the victim was consenting, given their past sexual history. I would hold this argument is flawed on the basis that consent must be given anew for each sexual encounter; you cannot argue that consent endures over time. Yet this very issue was interpreted differently by the House of Lords and McGlynn of the FJP.

Whilst McGlynn logically determined there was no argument of conflicting rights arising from s41 as consent is given afresh on each occasion, the Law Lords seemingly undertook judicial overkill on this question. Not only holding there was a conflict of rights, they stretched their interpretative obligation under s3 HRA to effectively re-write s41 in favour of the defendant. The original decision thus illustrates the ‘universal imbalance in power between women and men’[17] for the all-male court impliedly upheld a hierarchy of rights due to their combined lack of understanding the experience of the rape victim. The House of Lords did not stop their deliberations at the very beginning on the basis the consent must be given afresh when they could – and arguably should – have. Instead, they arguably adjudicated too much, if such a thing is possible, and created an implied hierarchy of rights. Through this, they prioritised the rights of the defendant to a fair trial over the rights of the victim to privacy. This was done needlessly, as surely the case could have concluded simply on determining that consent cannot be assumed but must be obtained afresh in each instance of sexual activity.

The case illustrates how gender may make a difference in judicial decision-making. Determining relevance is vulnerable to the application of private beliefs, as judges draw on personal experiences[18]. The judgments illustrate the difference in the male and female perspective to relevance: the male perspective favours reliance on sexual history to ensure Art 6 rights whereas McGlynn argued sexual history evidence ‘is often of little relevance’[19] and when submitted, is to the detriment of the victim. The concept of relevance therefore is ‘imbued with stereotypical notions’ and a ‘mythical base’ in the law of rape[20]. MacKinnon has argued the judicial system embodied in a male state ‘keeps women down and out’[21] due to such decisions, which uphold the right of the male defendant to the detriment of the female victim. Consequently, most rapes are unreported because most women know they will not get justice; ‘state rape is a more appropriate description of their experiences’[22] when subjected to intrusive cross-examination. Therefore it is in the interest of victims and the public to uphold rape-shield legislation; the public have an interest in witnessing a fair trial, but not the humiliation of victims[23].

The lack of diversity in the composition of the court was its Achilles heel, resulting as it did in the subconscious use of sexual stereotypes. The Law Lords ‘paid lip-service’[24] in advocating protection of rape victims, yet there were questionable statements which reiterated sexual stereotypes. For example, relating to the exclusion of non-contemporaneous sexual history evidence under s41, ‘the man or woman in the street would find it strange that evidence that two young people…as part of a happy relationship had had sexual acts together, must be wholly excluded’[25] suggests that society views rape as a non-occurrence between couples. However, the majority of victims know their attacker, so it reasonable to assume the trauma is exacerbated due to violation of trust. In addition, it must be noted this is a sweeping statement to make. I would submit the average person on the street would think it odd if past sexual history was brought up in a rape case; most people understand the principle that consent must be given afresh, so why permit an alleged rapist to rely on past consent?Yet the Law Lords failed to take this into consideration because of their strict application approach, whereby they interpreted the law to the exclusion of moral arguments[26] i.e. the privacy of the victim. They ruled on the legal validity of law provided by Parliament, noting their ‘strong interpretative’ obligation under s3 of the Human Rights Act[27] to give effect to the defendant’s Art. 6 right. McGlynn, however, rightly holds the resulting test of admissibility ‘distorts’ the wording of s41 and results in ‘judicial vandalism’[28]: Parliament did not intend the 1999 Act to be construed thus.

Furthermore, this ruling held the admission of sexual history evidence was at the discretion of the trial judge, implying the ‘manufacture of a fresh legal rule’ in the absence of an established rule. Yet, this ‘leads us nowhere and tells us nothing’[29] with the consequence of subjecting rape victims to uncertainty – will they be questioned, or not? – which further promotes the defendant’s interests. McGlynn’s adopted constructionist approach argues that a ‘fundamental’ feature of the 1999 Act was the restriction of judicial discretion, thus this emphasis on judicial discretion proposed by the original judgment ‘seriously undermines’ this feature[30]. I concur, and feel that the 1999 Act was sufficiently clear in instruction to prevent reliance on judicial discretion.

A legal realism approach ‘conceives the law as experienced by people’[31], arguing that interpretation is influenced by the decision-maker’s personal perspectives. In the re-written judgment, this approach ensured the protection of the victim, realising the experiences of the victim and the impact the appeal dismissal would have on rape victims – all due to the (female) gender of McGlynn. This does not result in ‘diminished respect for judicial authority’[32]; we respect judges when they interpret the law according to their own experiences, as we desire to see the law reflect modern society, and be a living document. This is evident when McGlynn remarks the impact of the case ‘will reverberate’ in subsequent rape cases[33].

That it is seemingly a ‘matter of common sense’ that ‘what has been engaged on in the past may influence what choice made on a future occasion’ cannot reflect modern society[34]. This implies a defendant can argue as the victim consented in the past, he believed that was ongoing consent. This is generalised and a discriminatory assumption grounded in a ‘masculine gendered assumption’[35] which erodes the voice and privacy of the female victim. On this basis I would argue ‘the law sees and treats women the way men see and treat women’[36] and submit R v A (No 2) makes the case for a diverse judiciary. A judiciary is ‘stronger’[37] when the court is diverse, due to the differing experiences and perspectives. Legal positivists would argue law is law and construed impartially irrespective of the diversity of judiciary. Scrutinising the original decision discredits this argument as it is obvious the masculine perspective influenced judges. The original judgment was partial to the male view, holding previous sexual history increases the likelihood that subsequent sexual relations are consensual and this I cannot accept. The re-written judgment suggests the presence of even one female judge could have challenged this dominant masculine perspective. The rewritten judgment suggests a female judge would utilise her experiences to argue consent must be refreshed, and present a more impartial interpretation: ‘consent is to a person, not a set of circumstances’[38].

 

Conclusion

Baroness Hale remarked that feminist judges ‘bring their own experience and understanding of life’[39] to the interpretation and application of the law. Considering the difference in outcome from the above judgments on the same facts of a case, I hold this to be true. A feminist critique illustrates whilst ‘women must not in principle be excluded from the rights enjoyed by men’[40] there is a disparity between theory and application. R v A (No 2) is an example of ‘how, where and why [the law] has failed women’[41] for it demonstrates how the law of rape contains sexual differentiation on the surface: it apparently promotes the interest of the victim in theory, and ultimately reflects the (male) defendant’s interpretation of the incident in practice.

References

[1] R v A (No 2) [2001] UKHL 25

[2] n 1, para 17-24 per Lord Steyn

[3] Ibid 20-21 per Lord Steyn

[4] Ibid para 23

[5] n 1, para 1

[6] N1, para 49

[7] Ibid, para 51

[8] n 1, para 43 per Lord Steyn

[9] Ibid, para 46

[10] E Jackson and N Lacey, ‘Introducing Feminist Legal Theory’ in J Penner, D Schiff and R Nobles, (eds) Jurisprudence and Legal Theory: Commentary and Materials (Great Britain: LexisNexis Butterworths, 2002) 785

[11] C McGlynn, R v A (No 2) in R Hunter, C McGlynn, and E Rackley,  (eds.) Feminist Judgments: From Theory to Practice (Oxford: Hart, 2010) 223, para 60-61

[12] Ibid, para 56-58

[13] n 11

[14] Ibid, para 71-72

[15] E Rackley, ‘Why Feminist Legal Scholars Should Write Judgments: Reflections on the Feminist Judgments Project in England and Wales’ Canadian Journal of Women and Law (2012) 24:403

[16] n 11, para 4

[17] H Charlesworth and C Chinkin, ‘Violence Against Women: A Global Issue’ in J Stubbs (ed.) Women, Male Violence and the Law (Sydney: Institute of Criminology Monograph Series, 1994) 13

[18] R v Seaboyer [1991] 2 S.C.R. 577 per Madam Justice L’Heureux-Dubé

[19] n 11, para 17

[20] n 18, para 678-79, 681

[21] C MacKinnon, Are Women Human? And Other International Dialogues (Massachusetts: Harvard University Press, 2006) 76

[22] Ibid, 244

[23] n 11, para 62

[24] J Elvin, ‘The Continuing Use of Problematic Sexual Stereotypes in Judicial Decision-Making’ Feminist Legal Studies (2010) 18:275-276

[25] n 1, para 10 per Lord Steyn

[26] S Ratnapala, Jurisprudence (Melbourne: 2nd edn, Cambridge University Press, 2014) 24

[27] R v Director of Public Prosecutions Ex Parte Kebeline and Others [2000] 2 AC 326, 366 per Lord Steyn

[28] n 11, para 71

[29]  R Dworkin, Taking Rights Seriously (London: Bloomsbury 2013) 33, 63

[30] n 28

[31] n 26

[32] T Hayes, ‘A Goode Judge is Hard to Find: An Essay on Legal Realism and Law School Casebooks’ 54 Journal of Legal Education (June 2004) 2: 221

[33] n 11, para 5

[34] n 1, para 31

[35] n 15, 411

[36] n 10, 792

[37] n 15, 413

[38] n 11, para 45

[39] Foreword in R Hunter, C McGlynn, and E Rackley,  (eds.) Feminist Judgments: From Theory to Practice (Oxford: Hart, 2010)

[40] M Dembour, ‘Critiques’ in D Moeckli, S Shah and S Sivakumaran (eds.) International Human Rights Law (Oxford: OUP, 2014 2nd ed) 67

[41] n 10, 786