GRAY’S INN STUDENT LAW JOURNAL VOLUME VII E DITED BY N ICHOLAS H ALL Association of Gray’s Inn Students LONDON · 2015 CONTENTS Foreword Counsel’s Advice to the Conservative Party on Putting into 1 Effect its Manifesto Commitment to Reform the Human Rights Act - Michael Beloff Essay Prize Winner Mark Greaves Section 2 of the Human Rights Act 1998: Requiring 13 Strasbourg to be the Floor and Ceiling of UK Human Rights Development Jemma Gordon To What Extent will the Immigration Bill (2013) Affect 27 UK’s Obligations Simon Cox Beaming Rights Home, Including Social Rights: 37 A Comment on Lord Kerr’s Dissenting Judgment in the Benefit Cap Case Christoph Futter Tackling Tax Evasion 43 Ebbe Rogge The US and UK’s Takeover Regimes 53 Constantinos Pashiardis The Extent of a Company’s General Meeting’s 67 Corporate Decision-Making Powers Kelvin Hong Who’s to Blame? A Call for Reform of Fault Based Divorce 75 Luke Tattersall Powers of Attorney: A Licence to Steal? 85 Charlie Greenwood Does the Law on Assisted Suicide Need Reforming? 91 Mary Brodie Individuals with Personality Disorders and the Law 103 Hannah Williams What is a House? 113 Nikolaos Michalakis Contract Law Under Duress 121 Rebecca Cross Reparations Regime: The Future of International Justice 127 or an Empty Promise? Mariya Peykova The Case for International Humanitarian Law to also 139 Apply to Internal/Non-International Armed Conflict Meredoc McMinn The Art of Article 5 151 Andrew Otchie A Critical Analysis of Biosecurity and Aviation Health 171 Borders in the UK Stephen Hill Woodland v Essex County Council 185 Samuel Parsons A Feminist Approach to Evans v UK 193 Malaeka Kazmi Should a More Generous Approach to the 207 Three Certainties be Applied? Naomi Dean Judicial Review 500 Years in the Making: 215 Richard III and the Burials Act 1857 Philippa Byrne What Causes Prison Suicide? A Sociological Exploration 223 Nicholas Hall FOREWORD Nicholas Hall It is a privilege to have been entrusted with the compilation of this volume of the Gray’s Inn Student Law journal, now in its sixth year. The response to the call for articles this year has been overwhelming, and I have endeavoured to accommodate as many submissions as possible. This edition bears witness to the diverse interests and specialisms of the student membership of the Inn, and editing the Journal has been an education in itself. I am most grateful to all those who contributed to the production of the Journal. Special thanks must go to the Education Department of Gray’s Inn and my peers of the AGIS Committee who have worked hard to maintain the inclusive ethos underpinning the Gray’s Inn Student Law Journal. A combined team effort continues to provide students each year with the prospect of engaging academically with the law, developing further an area of interest, and sharing their perspectives on topical legal issues. In addition, it is a unique opportunity offered by Gray’s Inn that enables those published to reference their work in legal applications and discuss it further in scholarship and pupillage interviews. It is my hope that as well as providing interesting and useful reading, this Journal might serve to attract future students to join the community that underlies this publication, and to get involved in the Committee responsible for arranging it. As with last year’s volume, this edition of the journal is available online from the Gray’s Inn website and in printed form. Finally, the real stars of this publication are the dozens of students who took the time to submit work for consideration. Their cooperation and patience is highly appreciated. Thank you all. G RAY’ S I NN S TUDENT L AW J OURNAL 11 COUNSEL'S ADVICE TO THE CONSERVATIVE PARTY ON PUTTING INTO EFFECT ITS MANIFESTO COMMITMENT TO REFORM THE HUMAN RIGHTS ACT Mark Greaves I. Introduction The Conservatives’ proposal to reform the Human Rights Act is set out in a Paper entitled ‘Protecting human rights in the UK’. This advice will thus first summarise this paper in terms of the guiding principle, the three underlying aims of the reform and the nine key objectives designed to effect those aims. Secondly, each of those nine objectives will be considered in turn. Thirdly, the possibility of withdrawal from the ECHR will be considered, either as a temporary or permanent measure. Fourthly, finally, the essay will consider the problems of the devolution dimension. II. The Conservatives’ Paper summarised The guiding principle of the Conservatives’ reform to the way human rights laws works in Britain is ‘to restore common sense and put Britain first’. The three underlying aims of the reform are 1) to make the Supreme Court supreme in interpreting European Human Rights Convention (‘Convention’) rights; 2) to make Parliament supreme in legislating on Convention rights; 3) to ‘clarify’ those Convention rights themselves. The Conservatives propose nine key objectives to bring about these aims. The nine objectives are: 1) the repeal of the Human Rights Act 1998 (‘HRA’); 2) the introduction of a new Bill of Rights that puts the text of the Convention into primary legislation; 3) a clarification of the Convention Rights; 4) breaking the formal link between British courts and the European Court of Human Rights (‘ECtHR’); 5) ending the ability of the ECtHR to force the UK to change the law; 6) preventing UK laws from being effectively re-written through ‘interpretation’; G RAY’ S I NN S TUDENT L AW J OURNAL 22 7) limiting the use of human rights laws to the most serious cases; 8) limiting the reach of human rights cases to the UK; and 9) amending the Ministerial Code to remove ambiguity. III. The nine key objectives considered A. Repeal of the Human Rights Act 1998 Parliament may do this, because Parliamentary Sovereignty means that it may do anything. However, as a constitutional statute, HRA may only be repealed impliedly, not expressly.1 This measure will not create any conflict with the ECtHR as it is a purely domestic matter. B. The introduction of a new Bill of Rights that puts the text of the Human Rights Convention into primary legislation This proposal makes reference to the ‘original document’ of the Convention and thus, taken at face value, suggests that the whole Convention as it stood in 1950, unamended by protocols, would be incorporated into UK law.2 It is submitted that, understood as such, this would be inadvisable for two reasons. Firstly, failure to incorporate the protocols would be likely to place the UK in breach of the Convention. Secondly, the incorporation of the additional Articles 1 and 13, which were deliberately left out of HRA, would seem to be inconsistent with the desire ‘not [to] introduce new basic rights through this reform’ and, as seen in objective 7 (which seeks to limit the use of human rights laws to the most serious cases), to reduce the number of human rights challenges brought against Parliament. It is therefore submitted that the Convention and protocols, less Articles 1 and 13, be put into primary legislation. If this is done, then there is unlikely to be conflict with ECtHR on this point. 1 Thoburn v Sunderland City Council [2003] QB 151 (at 62-63, per Laws LJ) 2 ‘Protecting Human Rights in the UK’ (2014), p.5 G RAY’ S I NN S TUDENT L AW J OURNAL 33 C. A clarification of the Convention Rights Three illustrations of Convention Rights in need of clarification are given, each of which will be considered in turn. i. Alteration of the real risk test in deportation cases The Conservatives’ paper calls for a ‘clearer test’ than the ‘real risk’ test used in deportation cases, but does not explicitly state what the test will be. It is submitted that the desire underpinning the proposal is not merely a test that it is clearer, but one that also raises the threshold. This is submitted since a ‘real risk’ test is criticised as being ‘by no means even a likelihood’3 and one of the examples given under the heading ‘The Case for Change’ is the fact that ‘foreign nations who have committed very serious crimes in the United Kingdom…have been able to use the qualified rights in the Convention…to justify remaining in the UK.’4 It is assumed that this refers to cases such as Chahal v The United Kingdom and Othman (Abu Qatada) v The United Kingdom, and, following from this, the desire of the Conservatives is to make it more difficult to have government action precluded or delayed on human rights grounds.5 It is submitted that a ‘likelihood’ test, as referred to in the paper, is neither clear nor necessarily raises the threshold. In R v Sheppard, Lord Diplock described the word ‘likely’ as ‘imprecise…capable of covering a whole range of possibilities from 'it's on the cards' to 'it's more probable than not’ and in that case held that it should be understood as ‘excluding only what would fairly be described as highly unlikely’.6 It is therefore submitted that if the Conservatives do wish to raise the threshold, the test could be altered to the ‘balance of probabilities’, as this is a clear test that is familiar to judges and applies ‘likely’ in what Lord Birkenhead described in Re H (Minors) as its ‘everyday usage…in the sense of more likely than not’.7 3 ‘Protecting Human Rights in the UK’, p.6 4 ‘Protecting human rights in the UK’, p.3 5 Chahal v The United Kingdom (2007) 23 EHRR 413; Othman (Abu Qatada) v The United Kingdom [2012] ECHR 56 6 R v Sheppard [1980] 3 All ER 899, at [405] 7 Re H (Minors) [1996] 1 AC 563, at [65] G RAY’ S I NN S TUDENT L AW J OURNAL 4 4 However, one reservation about this test must be mentioned.